The MLA Who Resigns Should Face Questions. But Should He Be Barred From Elections?
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2026-10-30 10:17:21
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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Resignations after defection can force taxpayers to fund another election. The Supreme Court is right to examine the problem, but a five-year cooling-off period could punish voters for the conduct of their representatives.
An elected representative who abandons the party on whose ticket he won and resigns his seat to join a rival formation raises a legitimate question of democratic accountability. The mandate was obtained under one political banner, but the politician chooses to seek another under a different one. The law must address the consequences without making the right to resign or the right of voters to choose unduly difficult to exercise.
That question is now before the Supreme Court. On October 26, the court agreed to examine whether MPs and MLAs who voluntarily resign and subsequently contest by-elections should bear the cost of those polls and whether they should face a cooling-off period before contesting again. The case arises from Tamil Nadu, where six AIADMK legislators resigned after the 2026 Assembly election and joined actor-politician Vijay's Tamilaga Vettri Kazhagam (TVK). Two of those resignations led to by-elections, which the former AIADMK legislators won as TVK candidates. The Supreme Court issued notices to the Centre, the Election Commission and the six legislators. It has not imposed either of the proposed restrictions.
The petition, filed by advocate K Suthan, seeks a mechanism to recover the public expenditure incurred on by-elections triggered by premature resignations, as well as a five-year cooling-off period for legislators who resign without compelling reasons. The Madras High Court dismissed the petition on September 24.
The distinction matters. The Supreme Court's willingness to examine the question does not mean it has endorsed the proposed remedies. The issue is whether the law can deter political opportunism without imposing disproportionate restrictions on elected representatives and their constituents.
The anti-defection law has a specific purpose, but resignation creates a separate problem.
The Tenth Schedule of the Constitution provides for disqualification on grounds of defection. Among other things, a legislator belonging to a political party can be disqualified for voluntarily giving up membership of that party or voting against a party direction without the required permission, subject to the Schedule's provisions. But the Schedule does not itself impose a five-year cooling-off period or require a legislator who resigns from the House to reimburse the public expenditure incurred on a resulting by-election.
The distinction is important because resigning a seat is not, by itself, a disqualification under the Tenth Schedule. Once a resignation is accepted, the legislator is no longer a member of the House, so the Schedule's disqualification provisions have nothing to act on. The law does not automatically impose financial liability or prohibit the former legislator from contesting another election.
The question that follows is whether resignation can become a convenient route for changing political allegiance and seeking a fresh mandate without additional accountability for the consequences. A fresh election is not inherently undemocratic. Voters may approve of a legislator's decision to change sides, and their verdict deserves respect. But the possibility of securing a second mandate does not make every preceding decision immune from scrutiny. The law should be able to distinguish a legitimate resignation from a calculated attempt to circumvent the consequences of political defection.
A blanket five-year ban would be the wrong starting point.
The proposed cooling-off period has an intuitive attraction. If legislators know that resigning soon after election could prevent them from contesting for five years, they might think twice before engineering a fresh poll. Yet deterrence cannot be the only test of a law.
Resignations can occur for legitimate reasons. A fundamental disagreement with the party leadership, a serious change in political circumstances, an inability to discharge public duties or an unforeseen personal emergency may justify leaving office. A legislator may also believe that voters should decide whether a change of political allegiance deserves their support.
A blanket ban would treat these circumstances alike. It could prevent voters from electing a person they continue to support, even when the resignation was not an attempt to manipulate the electoral process.
The problem would remain even if the ban were restricted to resignations without compelling reasons. Who would determine whether a reason was compelling? What evidence would be required? Would the Election Commission decide the matter, subject to judicial review? How would the process be completed without disrupting the election schedule?
These are questions of substance, not administrative details. Any restriction must be defined in law, applied through a fair procedure and open to challenge. A five-year ban that is triggered by a loosely defined test could become a weapon in the hands of political opponents or an instrument of arbitrary disqualification.
The Madras High Court's objection deserves to be taken seriously. It held that creating such a financial regime and a new electoral disqualification was a matter of legislative policy. The proposed restrictions, it said, would introduce features of electoral law that do not exist under the Constitution or the Representation of the People Act, 1951, and the judiciary could not impose them through directions to the executive or the Election Commission. The Supreme Court must now consider the constitutional and legal questions without losing sight of the distinction between interpreting existing law and creating a new punitive regime.
Cost recovery is the more defensible reform, provided it is tied to due process.
The case for financial accountability is stronger than the case for an automatic five-year ban. Where a legislator voluntarily resigns soon after election and the resignation directly necessitates a by-election, it is reasonable to ask whether the public should bear the entire additional cost regardless of the circumstances.
But the mechanism must be carefully designed. Recovering the full expenditure of a by-election could be disproportionate in some cases, particularly where resignation was justified. A law would need to identify the circumstances in which liability arises, establish how the recoverable amount is calculated and provide an independent process for determining responsibility.
One sensible starting point would be to require a legislator who resigns prematurely to submit a reasoned explanation. An independent authority could assess whether the resignation involved circumstances warranting further scrutiny. Where the law's criteria are met, a proportionate financial liability could follow, with a right of appeal.
Such a system would not presume that every resignation is improper. Nor would it make the right to leave office conditional on a political party's approval. It would instead require public accountability where a resignation creates an avoidable electoral expense and the circumstances justify recovery.
The financial mechanism would also need to guard against political misuse. A legislator should not face a penalty merely because the governing party dislikes the resignation or because the decision benefits an opponent. The test must be objective, the decision reasoned and the remedy proportionate.
Parliament must close the gap without compromising electoral choice.
The larger lesson is that anti-defection provisions and rules governing resignation cannot be considered in isolation. If the law is intended to discourage opportunistic defections, it should be examined for situations in which resignation allows a politician to achieve an outcome that the anti-defection framework was designed to prevent.
That does not mean every resignation should attract punishment. It means Parliament should consider whether the existing framework adequately addresses the consequences of premature resignations, including the public expense of resulting by-elections. Any reform must specify the conduct it seeks to deter, provide safeguards against arbitrary action and preserve the electorate's ability to make its choice.
The Supreme Court can examine the constitutional limits and the legal questions raised by the petition. It should not be expected to invent a punitive regime simply because the underlying conduct raises legitimate concerns. The responsibility for designing a durable and fair framework belongs to the legislature.
A legislator cannot claim an unrestricted right to political convenience while treating the consequences as somebody else's problem. Equally, the state cannot assume that every resignation is an offence against democracy.
A legislator's seat belongs neither to the party that gave him the ticket nor to the politician who occupies it. The mandate ultimately belongs to the voters. Any reform must make political opportunism harder, public accountability stronger and electoral choice more secure, not weaken that principle in the name of protecting public money.
