CHENNAI: Madras high court on Friday restrained the Election Commission of India (ECI) from notifying byelections to five constituencies – Trichy (East), Perundurai, Ambasamudram, Viralimalai and Karur — in Tamil Nadu. While Trichy (East) fell vacant after chief minister C Joseph Vijay quit as he opted to retain his Perambur constituency, the remaining four became vacant after the AIADMK MLAs from these constituencies quit and joined the ruling TVK.The first bench comprising Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan passed the interim orders and issued notices to the Election Commission of India, accepting the arguments of the petitioner’s counsel VR Shanmugathan on Friday. Notices were also issued to the resigned MLAs, including Vijay, to file their comprehensive counter affidavits by three weeks.A practising lawyer, K Venkatachalapathy of Tirunelveli district, filed the petition against holding byelections to these constituencies, saying already election petitions had been filed against the election of the now-resigned MLAs in these constituencies. The petitions had sought twin-relief: One, to declare their elections invalid, and two, to declare the respective petitioners as the duly elected MLAs in the constituencies.The petitioner pointed out that in case a byelection is held and a new MLA is elected, the constituency concerned would have two MLAs if the election petitioners succeed in their cases and get declared by courts as the ‘duly’ elected MLAs.Accepting the argument, the first bench said: “A returned candidate cannot frustrate the statutory inquiry into corrupt practices or escape the tentacles of judicial scrutiny by submitting resignation. To prevent an unworkable constitutional anomaly wherein two individuals could simultaneously claim valid title to represent the exact same constituency, the rule of harmonious construction dictates that the Election Commission’s obligation to hold an immediate byelection stands legally suspended, and the seat is deemed unavailable until an order is passed on the latter part of Section 84 of the RP Act.“Prima facie, the observations of the Supreme Court in the aforesaid decisions indicate that if an election petition seeks the composite relief of declaring the petitioner as duly elected under Section 84 of the RP Act, the vacancy cannot be treated as a “clear vacancy” available for a byelection.”A distinction must be drawn between two categories of vacancies — vacancies where an election petition claiming a composite relief under Section 84 of the RP Act to declare the election of the returned candidate void and to further declare another candidate duly elected under Section 101(b) of the RP Act has been filed and remains pending, and vacancies where no such election disputes are pending, the bench said.The judges flagged the cost of holding byelections and said: “The premature holding of byelections not only inflicts an enormous drain on the public exchequer funded by taxpayers but also risks a severe constitutional deadlock by potentially yielding two validly elected representatives for a single constituency.”Rejecting the contention of the Election Commission and the govt that the petition in the case was not a voter in any of these five constituencies, the judges said: “In matters touching upon the purity of the democratic process, a narrow and pedantic interpretation of locus standi cannot be applied.”AIADMK MLAs S Jayakumar elected from Perundurai, Esakki Subaya from Ambasamudram, C Vijayabaskar from Viralimalai, MR Vijayabaskar from Karur had resigned their MLA posts and joined the ruling TVK.While several election petitions challenging the election of these MLAs were filed between June 3 and 18, Venkatachalapathy approached the high court seeking directions to the ECI not to conduct byelections for these constituencies within six months, as they are not clear vacancies.His counsel VR Shanmugathan argued that if byelections are held, there would be two candidates representing the same constituency simultaneously – one elected from general elections and another through bye-election – if the election petitioner proves corrupt practices of the resigned MLAs.Advocate general Vijay Narayan argued that there were no election petitions pending against at least three MLAs on the date they tendered their resignation and the same was accepted by the assembly Speaker. “The subsequent filing of an election petition cannot retroactively invalidate a clear vacancy that had already arisen,” the AG argued.Standing counsel for the election commission Niranjan Rajagopalan submitted that the election petitions cannot be deemed as pending since they were yet to pass through the muster of maintainability. “In many of these cases, no notice has even been ordered or issued by the Court to the opposite parties,” he argued.However, the high court said that the nuanced arguments concerning the date of vacancy vis-à-vis the date of filing the election petition, alongside the maintainability of the election petitions highlighted by the ECI, require a deeper examination and posted the matter for hearing on July 31.
