Madras HC dismisses PIL seeking mechanism to recover bypoll cost

The Madras High Court on Thursday dismissed a public interest litigation (PIL) seeking directions to the Election Commission of India and the Chief Electoral Officer, Tamil Nadu, to create a mechanism to recover the cost of by-elections from MLAs who voluntarily resign from their seats soon after winning and to impose a five-year bar on them contesting subsequent elections.

A bench of Chief Justice Sushrut Arvind Dharmadhikari and justice G Arul Murugan said the reliefs sought would require creating new features of electoral law and could not be introduced through a judicial order.

“Relief cannot be granted. It is for the legislature to legislate. We cannot legislate,” the court said while dismissing the PIL filed by a lawyer, K Suthan.

The plea was filed after six MLAs elected in the 2026 Tamil Nadu Assembly elections resigned shortly after the results.

The petitioner argued that the resignations resulted in bypolls funded from the public exchequer and that the existing legal framework did not provide for recovering the expenditure from legislators who voluntarily gave up their seats.

He had earlier approached the EC and other authorities with representations seeking the proposed measures. He also pointed out that the mechanism he sought was “presently not incorporated into Indian electoral law.”

The petitioner relied on the Supreme Court’s 2002 judgment, which recognised the EC’s power under Article 324 to issue directions where the law was silent and the Commission had the constitutional or statutory power to act.

The high court, however, clarified that the Supreme Court had, in that case, required disclosure of information about candidates, including their criminal antecedents, assets and educational qualifications. It had not created a new disqualification or imposed a financial condition on the right to contest elections.

“In the case at hand, what is sought is not disclosure of an existing fact, but the creation of an entirely new disqualification, viz., a bar on contesting elections for five years, and a forfeitable financial deposit calculated on a case-by-case basis with reference to public expenditure,” the bench said.

The court noted that neither measure had any basis in the Constitution or the Representation of the People Act, 1951. It said the EC did not have an independent power under Article 324 to add new conditions or disqualifications for contesting elections.

The bench also referred to an earlier Madras High Court judgment, where a plea seeking recovery of by-election expenses from candidates who gave up one of two seats after winning both had been rejected. The court noted that although the EC had recommended such a deposit requirement in its 2004 proposals for electoral reforms, the necessary legislative amendments had not been enacted.

The bench further distinguished the Supreme Court’s 2024 judgment on electoral bonds, saying that case concerned voters’ right to know the source of political-party funding and did not provide a basis for creating a new disqualification or security deposit for legislators who resign and seek to contest again.

The court held that the proposed measures amounted to a “punitive and financial regime” and would operate as a new disqualification affecting the statutory right to contest elections.

“It is a matter of legislative policy, not of judicial direction,” the bench said.