By-election

Also called: Bye-election, Section 151A · Topic: Elections and the Electoral System · NCERT: Beyond NCERT

Meaning

A by-election (also spelt bye-election) is an election held to fill a single seat in a legislature that falls vacant in the middle of a term. Under Section 151A of the Representation of the People Act (RPA) 1951, the Election Commission of India (ECI) must hold it within six months of the vacancy.

By-elections matter for two reasons. They keep a constituency from going without a representative for long. They also carry a public cost, because voters must go to the polls again, and this cost is at the centre of the "one candidate, one seat" debate.

Explanation

How a seat falls vacant

• A by-election fills a casual vacancy. This is a seat that becomes empty before the House's term ends. A seat can fall vacant through:
• the death of the member;
• the member's resignation;
• the member's disqualification, for example after conviction under RPA s.8, or for defection under the Tenth Schedule (the anti-defection law);

• a candidate who won two seats giving one up.

• Disqualification on conviction makes the seat vacant at once:

• Under Art. 101(3)(a), a seat becomes vacant the moment the member is disqualified [3].
• After Lily Thomas (2013), a convicted sitting MP or MLA loses the seat immediately, with no three-month window to appeal [3].

• The empty seat must then be filled by a by-election.

• Vacancies caused by winning two seats:

• Under s.33(7), added in 1996, a candidate can contest at most two constituencies in one general election or by-election to the same House [2].
• Under s.70, a candidate who wins both seats must vacate one within 14 days of the result.
• The seat they give up then needs a by-election.

The time limit under s.151A

• s.151A was added to the RPA in 1996.
• Rule: the ECI must hold the by-election within six months of the date the seat fell vacant.
• Exception 1: no by-election is needed if less than one year of the member's term is left.
• Exception 2: the ECI may delay the poll if it consults the Central Government and then certifies that holding the election within six months is difficult.
• The ECI makes the certificate. The Centre is only consulted, so it does not decide.

The process step by step

• Step 1, vacancy: a seat falls vacant through death, resignation, disqualification or one of two won seats being given up. If it is a two-seat case, the winner must choose which seat to keep within 14 days (s.70).
• Step 2, timetable: the ECI must hold the poll within 6 months (s.151A), unless one of the two exceptions applies.
• Step 3, conduct: the poll runs under the same RPA 1951 and Conduct of Election Rules 1961 as a general election. The same qualifications (minimum age 25 for the Lok Sabha or a State Assembly), the same disqualifications, and the same EVMs, VVPAT and NOTA all apply.
• Step 4, challenge: the result can be questioned only through an election petition. This is a court case that challenges the result of an election. It must be filed in the High Court (s.80A) within 45 days of the result (s.81) [1], and either side can appeal to the Supreme Court (s.116A).

Limits

• A by-election fills only one seat. It does not change the life of the House.
• The member elected in a by-election serves only the rest of the original term. They do not get a fresh full term.

In the Constitution and practice

• Constitutional base:
• Art. 327 lets Parliament make laws on all parts of elections to Parliament and the state legislatures.
• Art. 328 lets a state legislature make election laws for its own House, but only where Parliament has not already made a law on that matter.

• Parliament used Art. 327 to pass the RPA 1951, and by-elections are run under this Act [1].

• Statute: s.151A of the RPA 1951, added in 1996, sets the six-month rule and its two exceptions.

• Who uses it: the ECI fixes the timetable and holds the poll. The Central Government is consulted only when the ECI wants to delay the poll.
• By-elections caused by two-seat contests:
• On 5 July 2004, the Chief Election Commissioner wrote to the Prime Minister. He asked for s.33(7) to be changed so that a person could contest only one seat [2].
• The ECI's other option was that a winner who gives up a seat should pay the cost of the by-election.

• On 2 February 2023, the Supreme Court (W.P.(C) 967/2017) refused to strike down s.33(7). It held that the matter is legislative policy, so only Parliament can change it [2].

• P.S. Golay, Sikkim (2019):

• Under s.11, the ECI cut the length of the disqualification of Sikkim's Chief Minister, P.S. Golay (Prem Singh Tamang), who had been convicted in a corruption case.

• This let him contest a by-election and remain Chief Minister.

• Courts cannot halt a by-election midway:

• N.P. Ponnuswami v. Returning Officer, Namakkal (1952) held that "election" means the whole process, from notification to the declaration of the result.
• So under Art. 329(b), courts cannot interfere while a by-election is going on. Any challenge comes only by election petition after the result.

Don't confuse with

• General election: a general election chooses members for all seats of a House when its term ends or it is dissolved. A by-election fills one seat that falls vacant in the middle of a term.
• s.70 (14 days) vs s.151A (6 months): 14 days is the time a winner of two seats has to give up one. Six months is the time the ECI has to hold the by-election after a seat falls vacant.
• Election petition: a by-election fills a seat that is already vacant. An election petition challenges a result in the High Court within 45 days (s.81) [1], and if the election is declared void, that can itself create a vacancy.
• Presidential and Vice-Presidential elections: these are not run under the RPA. Disputes about them go directly to the Supreme Court (Art. 71) under the Presidential and Vice-Presidential Elections Act 1952.

Prelims Hooks

• s.151A of the RPA 1951, added in 1996: a by-election must be held within 6 months of the vacancy.
• The two exceptions: less than 1 year of the term remains, or the ECI, after consulting the Central Government, certifies that holding the poll is difficult. Trap: the ECI certifies; the Centre is only consulted.
• s.33(7), added in 1996: a candidate can contest at most two seats [2]. s.70: a winner of both must vacate one within 14 days, which leads to a by-election.
• Lily Thomas (2013) struck down s.8(4). A convicted sitting member's seat falls vacant at once under Art. 101(3)(a) [3].
• s.11 and P.S. Golay (Sikkim, 2019): the ECI reduced his disqualification, which let him contest a by-election.
• N.P. Ponnuswami (1952) and Art. 329(b): no court can stop a by-election midway. The only remedy is an election petition after the result.

Mains Points

• Cost of by-elections caused by two-seat contests:
• Leaders who contest two seats to stay safe force by-elections, which cost public money and send voters back to the polls.
• The ECI (2004) proposed allowing one seat per candidate, or making the winner pay for the by-election [2].

• The Supreme Court (2023) left the choice to Parliament [2], so the reform needs a law.

• Balancing speed and practicality:

• The six-month rule in s.151A stops a constituency from going without a representative for long.

• However, the "difficulty" exception rests on the ECI's certificate, given after consulting the Centre. Clear, published reasons for each delay would protect the ECI's neutrality.

• By-elections as a route back into office:

• Cases like P.S. Golay (2019), where the ECI used s.11 to cut a disqualification, show how a by-election can help a convicted leader return.
• This adds to the wider debate on criminals in politics, where s.8 acts only after conviction.

Related concepts

• Representation of the People Act 1951
• Conduct of Election Rules 1961
• Right to contest elections
• Section 8A of the RPA 1951
• Section 9A of the RPA 1951
• Section 10A of the RPA 1951
• Section 11 of the RPA 1951
• Contesting from two constituencies
• Election petition
• N.P. Ponnuswami case

Read more

• The RPA 1951: qualifications, disqualifications and election disputes