The threat is stronger than the execution.
– attributed to Aron Nimzowitsch (1886–1935), chess grandmaster.
Five.
That is the number of Tamil Nadu Assembly constituencies which have no MLA today. And, for now, there is no prospect of them getting one.
On July 10, the Madras High Court restrained the Election Commission of India (ECI) from notifying bye-elections to these five seats until July 31: Tiruchirappalli East, Perundurai, Ambasamudram, Viralimalai and Karur. The order came from a Bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan.
The order is interim. The reasoning behind it is anything but. It rests on a doctrine the Supreme Court laid down in 1967, decades before most of today’s MLAs were born.
And if that doctrine holds, it will quietly rewrite the rules of Indian politics' newest defection device: resign, switch parties, and seek a fresh mandate under another flag, in the hope of outrunning the Tenth Schedule.
Let me explain.
First, the politics
The Assembly election results were declared on May 4. Actor-politician C Joseph Vijay’s Tamilaga Vettri Kazhagam (TVK) emerged as the largest party with 108 seats in a House of 234, 10 short of the majority mark of 118. Vijay became Chief Minister anyway.
Vijay had won from two constituencies, Perambur and Tiruchirappalli East. He kept Perambur and resigned from Tiruchirappalli East with effect from May 10. Routine enough.
What followed was not routine. Four All India Anna Dravida Munnetra Kazhagam (AIADMK) MLAs quit the Assembly in a slow drip. S Jayakumar gave up Perundurai with effect from May 25. Esakki Subbaiya followed in Ambasamudram on May 26, C Vijayabaskar in Viralimalai on June 16 and MR Vijayabhaskar in Karur on June 29.
All four reportedly drifted toward the ruling TVK, amid the convulsions in their parent party after its electoral rout. DMK president MK Stalin called it horse-trading. The TVK called it disillusionment. You can pick your own noun.
The script from here was supposed to be familiar. Rebels resign. Bye-polls follow within six months. Rebels contest on the ruling party’s ticket, win with the government’s wind behind them, and return to the House. The ruling party’s cushion grows. Everyone who matters is happy.
Except somebody read the law books.
Then, the counterstroke
Between June 3 and 18, election petitions were filed against all five of these victories, according to the record placed before the Bench. Nobody in the courtroom disputed that the petitions exist. The fights, as we shall see, were about when they were filed and how far they have travelled.
An election petition is simply a case which says: this candidate’s victory was illegal; set it aside. Vijay’s Tiruchirappalli East win, for instance, is under challenge from the Dravida Munnetra Kazhagam’s (DMK) Inigo S Irudayaraj, who lost to him by over 27,000 votes.
Now here is the detail that matters. Every one of these petitions asks for two things, not one. Declare the winner’s election void. And declare that the petitioner, or another candidate, was the real winner. Lawyers call this composite relief, and it is available under Section 84 of the Representation of the People Act, 1951 (RP Act). Hold that thought. And note one caveat: the second declaration is not granted for the asking. Under Section 101, the court must find that the rival actually polled a majority of valid votes or would have but for corrupt practices.
Then came a writ petition by K Venkatachalapathy, a Tirunelveli-based advocate and registered voter. His prayer: declare that these five vacancies are not “clear vacancies” that can be filled through bye-polls.
Wait. Isn’t the ECI legally bound to fill a vacant seat? Yes, ordinarily. Section 151A of the RP Act, inserted in 1996, commands the Commission to hold a bye-election within six months of a vacancy arising. There are only two exceptions: where the term left is under a year or where the Commission, with the Union government’s concurrence, certifies that an early poll is difficult. Neither applies here.
So why did the High Court stop the ECI? Because of a case from 1967.
A 1967 case answers a 2026 question
D Sanjeevayya was elected to the Andhra Pradesh Assembly. His rival filed an election petition alleging corrupt practices, and asked to be declared the winner himself. Sanjeevayya, by then a Union minister and a Rajya Sabha member, resigned his Assembly seat and demanded an immediate bye-election.
The Supreme Court, in D Sanjeevayya vs Election Tribunal, Andhra Pradesh, said no. Think about what would happen otherwise. A bye-election is held; someone wins. The election petition is then decided; the original rival is declared duly elected. You now have two members holding valid title to one constituency. Parliament, the Court said, could not have intended so absurd a result. A returned candidate, it held, “cannot get rid of an election petition filed against him by resigning”. The Commission could wait for the petition’s outcome.
Did the six-month rule of 1996 change this? The Supreme Court answered that too, in Election Commission of India vs Telangana Rashtra Samithi (2010). It did not. The overriding clause in Section 151A covers the provisions on the timing of bypolls; it does not touch Section 84. In Pramod Laxman Gudadhe vs Election Commission of India (2018), the Court put the law in two neat boxes. Vacancies shadowed by pending petitions seeking composite relief were not available for filling. Vacancies free of such challenges were clear, and the six-month clock was binding.
The Madras High Court applied this line prima facie to the five Tamil Nadu seats. It also brushed aside the objection that the writ petitioner, a stranger to all five constituencies, had no business filing the case. In matters touching the purity of the democratic process, the Bench said, a “narrow and pedantic” reading of locus standi cannot be applied. Premature bye-polls drain the exchequer and invite the very deadlock Sanjeevayya feared.
The ECI now stands restrained until July 31, when the matter comes up next.
What the Election Commission will argue
The Commission is widely expected to appeal to the Supreme Court. Its brief practically writes itself.
First, the timeline. In at least three of the five cases, the state’s Advocate General told the Bench no election petition existed on the day the Speaker accepted the resignation. Every case in the Sanjeevayya line involved a petition already pending when the member resigned. Here, the Commission will say, the vacancies were clear at birth. The six-month clock started by operation of law. A petition filed afterwards cannot retrospectively cloud a vacancy that was clean when it arose. The Bench itself flagged this question. Yet it froze all five seats without testing the dates, seat by seat.
Second, the word “pending”. An election petition is a fragile thing at inception. It must survive scrutiny of maintainability; its defects must be cured. In several of these cases, the court has not even ordered notice to the opposite side. Can a petition that has crossed none of these thresholds freeze a constituency?
Third, prematurity. No bye-election had even been notified when the writ was filed. Article 324 of the Constitution vests the superintendence of elections in the Commission. Courts have historically refused to restrain electoral steps in anticipation.
Fourth, the floodgates. The composite prayer is a drafting reflex; nearly every losing candidate adds it. If its mere filing freezes a seat, the electoral calendar passes from a constitutional authority to any litigant with a court fee. And here is the twist: the Commission can quote the High Court’s own precedent back at it. Gudadhe stressed the democratic urgency of filling vacancies and refused to treat the cost of an election as a reason to deny a constituency its voice.
Strong cards. But each has an answer, and the order hints at where the other side will find them.
The two-member absurdity that drove Sanjeevayya does not care about sequence. It arises whenever a court declaration collides with a bye-poll verdict, whichever was born first. On this view, a vacancy’s availability must be tested on the day the Commission acts, not the day the seat falls empty.
Add one more detail: Section 81 of the RP Act allows 45 days from the result to file a petition. Until that window closes, no resignation vacancy is truly beyond challenge. The Tamil Nadu petitions were all filed within it, the last on the very edge of the deadline.
Election petitions come with strict rules on pleadings, parties and security deposits, and the Section 101 declaration needs credible arithmetic, not a drafted wish. As for prematurity, think about the timing. Once a notification issues, Article 329(b) of the Constitution slams the door on judicial intervention until the process ends. The pre-notification window was the only one in which any court could act. The writ walked through it.
The Supreme Court has never squarely decided the sequence question. This case may compel it to.
The lesson for party managers
Strip away the Latin, and the politics of this order are stark.
A rebel legislator’s resignation has value only if it converts, quickly, into a fresh mandate under a new flag. Freeze the bye-election, and the resignation buys the rebel nothing except a wilderness of indefinite duration.
So any party that fears engineered resignations now has a legal tripwire. File election petitions with the composite prayer against vulnerable winners within the 45-day window. Once such a petition is on record, the resignation route to a swift return is sealed. The rebel may still quit. He cannot promptly come back.
Notice what this does to the economics of defection. A seat that cannot be refilled is a far less marketable asset than one that can. Remember Nimzowitsch: the threat is stronger than the execution. The petition never needs to succeed. It only needs to exist.
And Tamil Nadu’s rebels are discovering that resignation was not even a clean exit. The Assembly Secretariat has told the High Court that anti-defection proceedings under the Tenth Schedule survive resignation and must be decided on pre-resignation conduct. The AIADMK’s chief whip has separately challenged the Speaker’s acceptance of the resignations. The men who walked out now face litigation on three fronts.
The paradox
Now for the strangest part.
Suppose you are the AIADMK. You have watched four of your MLAs walk out, and you fear more will follow. You now know the antidote: an election petition with the composite prayer. So why not file a few yourself, against your own vulnerable winners, as insurance?
You cannot. Section 81 of the RP Act allows only a candidate in that election, or an elector of that constituency, to file. And no party can walk into a court and ask it to void the very victories it celebrated in May. Even a petition procured through a friendly elector would have to pray that a rival be seated in its own member’s place.
Which means the AIADMK must depend on a favour from its adversaries. Only the candidates who lost to its MLAs can lay the tripwire that keeps its flock at home.
The losers of May now hold the keys to the winners’ political future.
It gets stranger. The AIADMK profits only while these petitions are pending, never if they succeed. A successful petition voids its own member's election and may even hand the seat to a rival. What deters the rebel is the sword hanging, not the sword falling.
So the AIADMK must quietly hope for two things at once. That its opponents file their petitions diligently. And that the courts decide them slowly.
Which brings us to the law’s most uncomfortable corner.
The catch
There is a worm in this fruit. And the Madras High Court knows it better than any court in India.
The Sanjeevayya doctrine is honest on one assumption alone: that election petitions are decided fast. The law shares the assumption. Section 86(7) of the RP Act directs that the trial of an election petition be concluded, as far as possible, within six months. The Supreme Court in Mohd. Akbar vs Ashok Sahu (2015) pressed the same urgency.
Now for the reality.
In 2016, the DMK’s M Appavu lost the Radhapuram Assembly seat by 49 votes. He filed an election petition the same year. A court-ordered recount in 2019 gave him 153 of the disputed postal ballots and his rival exactly one. The 49-vote defeat had become a 103-vote victory. But the Supreme Court stayed the declaration of the recount result and then sat on the appeal from 2019 until May this year. It finally returned the matter without answering the question it had kept open, noting only that time had lapsed.
On June 3, in M Appavu vs IS Inbadurai, Justice G Jayachandran of the Madras High Court declared Appavu the winner. Ten years after he filed his petition. Five years after the Assembly concerned had dissolved. The judge called the decade-long drift a “grave mockery of justice” and warned that such delay can carry a democracy towards autocracy.
Appavu’s victory was almost wholly symbolic. A name corrected in the records for a term already lived by another. Radhapuram and the bye-poll order are mirror images. In Radhapuram, the seat stayed filled through the entire term by a member whose victory the trial court found unsustainable. In the five frozen constituencies, the danger is inverted: seats held by nobody at all, for as long as the petitions crawl. The doctrine that shields the voter from two members can, without judicial speed, sentence the voter to none.
The Supreme Court’s own recent conduct offers little comfort. On June 12, in Meenakshi Natarajan vs Election Commission of India, it dismissed the Congress leader’s challenge to the rejection of her Rajya Sabha nomination from Madhya Pradesh. The Constitution, it held, permits no judicial entry mid-election; her sole remedy was an election petition. During the hearing, the Bench appeared alive to the worry the Madras High Court had just voiced: that election petitions die of delay. The written judgement recorded no endorsement of those strictures and gave her no relief. Natarajan was left with a petition to file, while the three seats went, uncontested, to her rivals.
So, where does that leave us?
When the bye-poll case reaches the Supreme Court, three questions deserve answers.
Does the Sanjeevayya freeze apply where the petition follows the resignation? What makes a petition “pending”: its filing or its crossing of maintainability? And, hardest of all, will the Court pair the freeze with enforceable timelines for the petitions that trigger it?
That last question is the real one. Parliament froze contested seats because it believed contests would end in months. The freeze and the six-month command are two halves of a single design. Enforce the first while tolerating the breach of the second, and you are administering half the scheme. The easier half, at that.
The narrower rule is not hard to imagine. Defer a bye-poll only where a properly presented, prima facie maintainable petition was already pending when the vacancy arose. Only where the claim to the seat rests on credible arithmetic under Section 101. And bind every deferral to a clock: threshold objections decided in weeks, then the day-to-day trial the Act already promises.
In chess, the threat is stronger than the execution. In election law, the threat must eventually be executed. A stay without a clock does not protect democracy. It merely changes the form in which the voter is denied a choice.
V Venkatesan is a Contributing Editor at Supreme Court Observer. Views expressed here are the author’s own.
