INTRODUCTION

The word ‘election’ simply refers to the act of choosing someone for an official job, in a formal
and organized manner, mostly done by way of voting. But in any society having a popular
Government, the word is typically comprehended in its political sense of electing a
representative in a modern representative Democracy. This is because, the importance of
elections for sustaining a progressive Democracy is deeply ingrained in the hunch of people,
especially those who have encountered the ills of colonial, despotic and absolute regimes in the
past. There exist different types of elections, each one of them contributing in their own way to
carry on the souvenir of Democracy. Some basic types of elections that are carried out in India
and around the world include General election, State Assembly election, Upper House election,
State Legislative Council election, Bye-election, Primary election and Constitutional
Amendment election.

A vacancy may arise as a result of an incumbent dying or resigning, or when the incumbent
becomes ineligible to continue in office (because of a recall, ennoblement, criminal conviction,
or failure to maintain a minimum attendance), or when an election is invalidated by voting
irregularities. In some cases a vacancy may be filled without a by-election or the office may be
left vacant.

The procedure for filling a vacant seat in the House of Commons of England was developed
during the Reformation Parliament of the 16th century by Thomas Cromwell; previously a seat
had remained empty upon the death of a member. Cromwell devised a new election that would
be called by the king at a time of the king's choosing. This made it a simple matter to ensure the
seat rewarded an ally of the crown.1 During the Cavalier Parliament of Charles II, which lasted
eighteen years, from 1661 to 1679, by-elections were the primary means by which new members
entered the House of Commons.

A by-election (also spelled bye-election), also known as a special election in the United
States and the Philippines, or a bypoll in India, is an election used to fill an office that has
become vacant between general elections. This article will vividly explain what is a bye-

1
Jennifer Loach. Parliament under the Tudors. Clarendon Press. Oxford. 1990. p. 36

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election, under what circumstances it is held and how it is conducted, particularly with reference
to India.

RESEARCH OBJECTIVE:

 To study the history of meaning and scope of Bye-Election.

 To study the role of Bye-Election in Indian democratic System.
 To Study and analysis the law and procedure related to Bye-Election in India.
 To Study the International approach of Bye-Election.

RESEARCH QUESTIONS:

 Whether the bye-election procedure is good for Indian Democracy?

 Whether the present laws of Bye-Election are used with bona-fide intention by the
contestant?
 Whether there is a need of reformation of law governing the Bye-Election in India?

RESEARCH METHODOLOGY:

The author has referred to secondary sources of data due to paucity of time to collect
primary data, to reach to a firm conclusion which includes articles, cases and statutes.

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ELECTION LAWS IN INDIA:

India is a land of ancient civilization, with cities and villages, cultivated fields, and great works
of art dating back 4,000 years. India is a Sovereign Socialist Secular Democratic Republic with a
Parliamentary system of government. The republic is governed in terms of the Constitution.
Sovereignty is shared between the centre and the state, but the centre is given greater powers.
The president is the constitutional head of Executive of the Union. Real executive power vests in
a council of ministers with the prime minister as head.2Generally talking there are three kinds of
electoral practices in the world. They are competitive elections, semi –competitive elections and
non-competitive elections. Competitive elections are held on the basis of universal franchise and
these may be held in multi-party systems. ‘Semi competitive’ elections are held where voters are
provided with a choice between two or more candidates for legislature and local government
office within the rubric of the non-party state, and where election thus provide an opportunity for
the electorate to change its representatives but not the regime which governs. Non-competitive
elections are where voters are neither provided with alternatives of representation nor the
opportunity to change their government.

History of Elections in Ancient India

Elections in India are not a new phenomenon or a new concept born in modern times. Taking
decisions to run their affairs, be they at the level of individual families or at the community level,
collectively and with the consensus of all concerned, has been the pervading philosophy of
Indian way of life from times immemorial. Our ancient scriptures dating back to the Vedic age
are filled with references to republics and democracies prevailing in various parts of ancient
India. Ancient historians have recorded graphic details of the people choosing their own heads,
ganapaties, of the great Vaishali ganarajya, thousands of years back, to let them in times of peace
and war. They were assisted by other wise men and nobles in their decision-making, like the
present council of ministers.

2
Rashmi Sharma, ‘India and SAARC’, Regal Publications, New Delhi (2007), p. 320

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History of Elections during British Rule:

The government of India Act of 1858 was an act of the British parliament that ended the
existence and long tenure of the British East India Company in India and transferred its power
and assets directly to the British Crown. The impetus for the government of India Act was the
Indian Mutiny that took place in 1857 and shook the power of the British in India. The British
East India Company was founded in 1600. In the Nineteenth century, the British Parliament,
when it took over from the East India Company, under the Government of India Act 1858, the
governance of Indian territories under its occupation after the first war of independence which
Brock out in India for freedom from the British yoke in 1857, had provided for the constitution
of bodies to legislate on local was under the Indian Councils Acts of 1861 and 1892.

History of Elections after Independence:

After independence, under Indian Constitution, since 1952 general elections, the competitive
electoral practice has come in to existence, in India. Prior to it there had been electoral practice
of semi-competitive and non-competitive electoral practice. There are three basic elements to
establish the competitive electoral system such as: (1) Universal suffrage; (2) Multi party system;
and (3) Change of regime or government.

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BY-ELECTION IN INDIA:

Fundamentally, bye-elections are elections, which are held to fill previously elected offices that
have fallen vacant, before the ceasure of such elected offices’ tenure. The main motive behind
conducting bye-elections in India is also for serving the above said purpose. Bye-elections (also
known as By-elections or Special elections) are commonly referred to in India by the name
Bypolls. The legitimacy of bypolls in India springs from the Representation of Peoples Act,
1956. The word Bye-election finds its mention in the provisions of the Act.

In fact, it would be right to say that the Election Commission of India (abbreviated as ECI)
procures its source of authority from Sections 147, 149, 150, 151 and 151(A) of the
Representation of Peoples Act, 1956 (abbreviated as RPA, 1956). Sections 147, 149, 150 and
151, which speaks about bye-election could be consolidated as follows:

1. When the seat of a member elected to

 Council of States (or)
 House of People (or)
 State Legislative Assembly (or)
 State Legislative Council

2. Becomes
 vacant (or)
 declared vacant (or)
 the member’s election to any of such bodies is in itself declared to be void

3. Before the expiration of term of office,

4. Then the ECI shall by notification in official gazette
5. Call upon
 Members of Legislative Assemblies or electoral college concerned (or)

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  Assembly constituency (or)
 Parliamentary constituency (or)
 Council constituency or Members of the State Legislative Assembly respectively

6. For the purpose of filling up the vacancies, so caused,

7. Before the date specified in such notification.
8. Provided, the provisions of this Act and the rules made thereunder shall apply in

This consolidated form of Sections 147, 149, 150 and 151 is necessary for the easy
understanding of what is a bye-election. From this one could say that, an election which is
conducted by the ECI for filling vacancies caused before the normal term of expiration in the
seats of either House of Parliament or either House of State Legislature, in order to
frictionlessly continue the Democratic process, without waiting for the next General Election
to commence, is called bye-election in India. The member elected by a bye-election will have
a term of office equal to the remaining tenure of preceding member.

When is a bye-election conducted?

According to second ingredient of the consolidated form of Sections 147, 149, 150 and 151,
the institution of a bye-election will be constituted in any of the following ways. It may be by
vacation or declaration of vacation or declaration of election as void. As per section 151-A of
Representation of Peoples Act, 1956 the bye-election should commence within 6 months
from the occurrence any of the following cases.

1. By vacancy or declaration of vacancy of a member’s seat in either House of Parliament or

that of State Legislature:

The death of any sitting member will naturally create a vacancy in his or her seat. This has
happened several times. Recently in the state of TamilNadu, a bye-election has been
announced by ECI in Legislative Assembly constituency of Vikravandi, due to the death of

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 its MLA, K.Rathamani.3 This should not be confused with adjournment of polls done under
section 52 of RPA, 1956 due to the death of a candidate before polls.

The Chairman or Speaker, as the case may be, may accept the resignation of any sitting
member of either house of Parliament or that of State Legislature, which is voluntary and
genuine and this will have an effect of his or her seat becoming vacant. This has been stated
in articles 101 and 190 of the Indian Constitution.

The seat of a member of either House of Parliament or that of State Legislature will be
declared vacant if the member is absent for a period of 60 days without the permission of the
House. The Delhi High Court in Adish C. Aggarwala V. Bar Council of Delhi and others4
quoted this.

Bye-elections are more common to occur due to the vacancy arising from contesting in an
election from more than one constituency. Candidates are misusing certain provisions of law
under RPA, 1956 that provides for multiple elections, for their own self interests rather than
that of the society.

As per articles 101 and 190 of the Indian Constitution, no person can be a member of both
Houses of Parliament as well as both Houses of Legislature of State. Section 68 of RPA,
1956 states that failure of a person, who has been chosen to be a member of both houses of
Parliament to give notice, regarding intimation of which House he wants to serve, within 10
days from the date on which he is chosen, will make his seat in the Council of States to
become vacant.

Section 69 of RPA, 1956 says that, if a person who is already a member of one of the houses
of Parliament and who has taken seat in such House, is chosen to be a member of the other
House of Parliament, his seat in which he is already a member will become vacant on the
date on which he is chosen to be a member of other House of Parliament.

3
https://www.thehindu.com/news/national/tamil-nadu/vikravandi-dmk-mla-dead/article27944776.ece
4
2003 VIIAD Delhi 633

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 Section 70 of RPA, 1956 says that, if a person who is elected to more than one seat in either
House of Parliament or in the House or either House of the Legislature of a State, fails to
resign all seats except one in the form of a notice to Chairman or Speaker, all his seats will be
deemed to be vacant.

Article 101(2) of Indian Constitution says that a person’s seat in Parliament will become
vacant if the person who is chosen a member of both Parliament and of a house of State
Legislature has not resigned any of those seats. In the state of TamilNadu, bye-election of
Nanguneri Legislative Assembly constituency is going to be held because of the resignation
of its MLA, VasanthaKumar shortly after having won a seat in LokSabha from the
Parliamentary constituency of KanyaKumari. If he had failed to give his resignation of the
office of MLA within required time, his seat in LokSabha would have become vacant which
would necessitate the conducting of bye-election in KanyaKumari Parliamentary
constituency.5

Similarly, article 190(2) of Indian Constitution says that a person’s seats in Legislatures of all
states would become vacant if he did not resign all seats except one within the stipulated
time.

Vacancy may emerge on grounds of defection under schedule 10 of the Constitution.

Whether a person is involved in defection or not is decided by Presiding Officer, based on a
petition by any other member of the House. A legislator will be deemed to have involved in
defection if he either voluntarily gives up the membership of his party or disobeys his party’s
decision on any voting in the House. In Ravi Naik V. UOI,6 the Supreme Court observed that
the giving up of membership voluntarily need not always be by way of a formal resignation
and further said that it can be inferred by conduct. In Viswanathan V. The Hon’ble Speaker
of TamilNadu Legislative Assembly,7the court held the view that, members who have publicly
opposed their party or have expressed support for other parties are deemed to have
voluntarily given up their membership.

5
https://timesofindia.indiatimes.com/city/chennai/vasanthakumar-resigns-mla-post-dmk-may-contest-in-
nanguneri/articleshow/69568892.cms
6
1994 AIR 1558
7
1996 AIR 1060

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 Vacancy of seats may transpire also due to ineligibilities or disqualifications of the members,
as prescribed by law. Some disqualifications are being enunciated under Chapter 3 of Part 2
in the RPA, 1956. Some of them are as follows.

Section 8(1) disqualifies a person convicted of any offence which is provided from sections
8(1)(a) to 8(1)(n) for a period of 6 years from the date of conviction, if he is sentenced only
to fine and for a further period of 6 years from the date of release, if he is sentenced to
imprisonment.

The RPA, 1956 also disqualifies members for involving in any corrupt practice or for having
convicted for contravention of any law providing for prevention of hoarding or profiteering
or law related to adulteration of food and drugs or provisions related to Dowry Prohibition
Act. In 2006, on Election petition No.1, in the case of Shri P.M.Ismail V. Shri P.C.Thomas8
the Hon’ble High Court of Kerala declared the election of first respondent, P.C.Thomas, the
returned candidate to the House of People from Muvattupuzha Parliamentary constituency to
be void and further held the petitioner as elected. This was challenged by P.C.Thomas before
Supreme Court, wherein the Supreme Court upheld the decision of High Court. After this
President heard the recommendation of ECI and disqualified him for a period of 3 years
under 8-A(1) of RPA, 1956.

Section 9(1) of RPA, 1956 disqualifies from membership of Parliament or State Legislature
for 5 years, a person who has been dismissed from Government service on grounds of
corruption or disloyalty.

The Act also disqualifies a person from membership of Parliament or State Legislature, as
long as he is in managerial administration of a company in which the Government holds
more than 25% of shares or as long as he is in contract with appropriate Government.

Section 10-A of RPA, 1956 disqualifies from membership of Parliament or State Legislature
for 3 years, a person who has failed to lodge an account of election expenses within the
stipulated time and has no good reason for justifying the same.

8
Civil Appeal No. 5003 of 2006

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 By declaring as void the election through which the member was earlier elected to either
House of Parliament or either House of State Legislature:

There exist instances where bye-elections were called, because of voting irregularities and
other like reasons. Recently, in March 12, 2019, the High Court of Madhya Pradesh declared
as void, the election of Congress Legislature Party Leader, D.P.Mishra to a State Legislative
Assembly in May 1963.9

This scenario often springs up by virtue of Section 81 of RPA, 1956 which prohibits the
presentation of election petition earlier than the date of election of returned candidate. In
Sanjeevayya V. Election Tribunal Andhra Pradesh10 the appellant filed a writ petition in High
Court for issuing writ of Mandamus to ECI, asking them to conduct bye-election in a
legislative assembly constituency after giving his resignation as MLA to that constituency.
This appeal was dismissed on ground of a pending election petition before Election Tribunal
filed by respondent claiming for declaration that he was duly elected and the appellant’s
election to the State Legislative Assembly was void.

How is Bye-election conducted?

It has been explicitly mentioned in Sections 147, 149, 150 and 151 of RPA, 1956 that the
provisions of this Act and the rules made thereunder will apply in relation to the elections for
filling vacancies of the nature explained in such sections.

Hence the procedure for conducting bye-elections will be the same as the procedure for
conducting General elections. In fact the six months’ time constraint on the ECI is also the
same for General as well as bye-elections. That is, as per the Constitution the ECI is bound to
hold the general elections such that a new government can take office within six months of
the dissolution of the previous lower House of the Parliament or State Legislature. Similarly
the ECI is bound to hold bye-elections within six months from the date of arising of vacancy
in either house of the Parliament or that of the State Legislature, under Section 151-A of the

9
https://www.thehindu.com/archives/from-the-archives-march-13-1969-dp-mishras-election-held-
void/article26514666.ece
10
1967 AIR 1211

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 RPA, 1956. But there are exceptions to this basic rule set out by Section 151-A of RPA,
1956.They are as follows:

1. When the remaining tenure of the member in relation to vacancy is less than 1 year.

2. When the ECI, in consultation with the Central Government certifies that it is difficult to
hold bye-elections within that time constraint.

These exceptions have been mentioned in the case A.P.Ranganatha V. Chief Election
Commissioner11 dated Oct 29, 2018. An example for the first exception would be the
decision of India’s Chief Election Commissioner, Rawat not to hold bye-elections for the five
Lok Sabha seats in Andhra, which have fallen vacant due to the concerned members’
resignation on June 4, 2018 on the ground of time for expiration of Lok Sabha is less than 1
year12.

11
W.P.No.46107/2018
12
https://www.thenewsminute.com/article/ysrcp-mps-resignation-no-bye-election-5-seats-andhra-ec-clarifies-8957

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INTERNATIONAL SCENARIO OF BY-ELECTION:

In Single-Member Constituencies:

By-elections are held in most nations that elect their parliaments through single-member
constituencies, whether with or without a runoff round. This includes
most Commonwealth countries, such as the United Kingdom, Canada, Australia and Pakistan, as
well as non-Commonwealth countries such as France.

In the United States, these contests have been called "special elections" because they do not
always occur on Election Day like regular congressional elections. Special elections are held
when a seat in the House of Representatives, state legislature, or local legislature becomes
vacant. At the federal level, the U.S. Constitution requires that vacancies in the House of
Representatives be filled with a special election (unlike the Senate, where it is up to law of the
state involved to determine how the vacancy is filled). In most cases where a vacancy is filled
through a special election, a primary will also be held to determine which candidates will
represent the major parties.

In Multi-Member Constituencies:

When one seat in a proportional representation constituency becomes vacant, the consequences
vary. For example, a by-election may be held to fill just the vacancy or all the seats in the
constituency could be contested in the by-election.

Alternatives to holding a by-election include:

1. choosing from those losing candidates at the previous election who choose to contest the
recount to fill the vacancy, as in Tasmania or the Australian Capital Territory,

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 2. Keeping the seat vacant until the next general election. This usually occurs if a vacancy
arises shortly before a planned general election (within six months in New Zealand).

3. Nominating another candidate with the same affiliation as the former member – typically,
in list systems, the next candidate on the party list.

For the Australian Senate (in which each state forms a multi-member constituency elected
via single transferable vote), the state parliament appoints a replacement in the event of a
vacancy; in 1977 a referendum amended the Constitution to require that the person appointed
must belong to the same political party (if any) as the Senator originally elected to that seat. The
states with an upper house elected via STV (NSW, Victoria, and South Australia) use the same
method, except for Western Australia, which holds a recount of ballots to determine the new
winner, with sitting members retaining their seats.

In Mixed Systems:

Scotland and New Zealand still hold by-elections, despite having adopted the mixed-member
proportional representation system, in which some members are chosen by party lists. In both
countries, by-elections where voters elect their preferred candidate are only used to fill a vacancy
in a constituency seat. For example, the death of Donald Dewar resulted in a by-election for the
constituency of Glasgow Anniesland. If a vacancy arises from the death or resignation of a party
list member, the next unelected candidate on the party list is offered the seat. If that candidate
has died or declines the seat, it is offered to subsequent candidates on the list until one accepts
the seat. For example, on the resignation of Darren Hughes in March 2011, Louisa Wall was
elected after all the five candidates above her on the New Zealand Labour Party's list declined the
seat. The Republic of Ireland holds by-elections despite electing members in multi-member
constituencies by the single transferable vote.

In the German Bundestag, which uses mixed-member proportional representation, by-elections

were originally held upon the vacancy of any constituency seat, in the same manner as Scotland
and New Zealand. This was changed in January 1953, since which time vacancies in
constituency seats have been filled by the next candidate on the state list of the party which won
the seat, in the same manner as vacancies among list seats. By-elections are now only held if a

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vacancy arises in a constituency seat and there is no associated party list with which to fill it –
typically, if the former member was elected as an independent. This is referred to as a substitute
election (Ersatzwahl). Since no independents have been elected to the Bundestag since the first
legislative period, no such substitute election has ever taken place.

SIGNIFICANCE AND CONSEQUENCES:

Direct Effects:

By-elections can be crucial when the ruling party has only a small majority. In parliamentary
systems, party discipline is often so strong that the governing party can only lose a vote of no
confidence after losing enough by-elections for it to become a minority government. Examples
are the Labour government of James Callaghan 1976–1979 and Conservative government of
John Major 1992–1997. In the United States Senate, Scott Brown's election in 2010 ended the
filibuster-proof supermajority formerly enjoyed by Democrats.

By-elections can also be important if a minority party needs to gain one or more seats in order to
gain official party status or the balance of power in a minority or coalition situation. For
example, Andrea Horwath's win in an Ontario provincial by-election in 2004 allowed the Ontario
New Democratic Party to regain official party status with important results in terms of
parliamentary privileges and funding.

Predictive Value:

Political scientists generally caution against over interpreting by-election results, which non-
experts often take as a bellwether or early indicator of the results of the next general election.
The evidence suggests that while the margin of victory relative to the district's normal
performance may be relevant, other indicators generally provide stronger evidence with a larger
sample size.

A 2016 study of special elections to the United States House of Representatives found "that
while candidate characteristics affect special election outcomes, presidential approval is
predictive of special election outcomes as well. Furthermore, we find that the effect of

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presidential approval on special election outcomes has increased in magnitude from 1995 to
2014, with the 2002 midterm representing an important juncture in the nationalization of special
elections."

Seats which have unexpectedly changed hands in by-elections often revert to the former party in
the next general election. One reason for this is that voter turnout at by-elections tends to be
lower and skewed toward highly motivated supporters of the opposition party.

Indirect Impact:

By-election upsets can have a psychological impact by creating a sense of momentum for one
party or a sense of impending defeat for a government. Deborah Grey's 1989 by-election victory
in Beaver River was seen as evidence that the newly formed Reform Party of Canada would be a
serious political contender and that it posed a serious political threat for the ruling Progressive
Conservatives. It also gave important momentum to the new party. Similarly, the upset 1960 by-
election victory of Walter Pitman in Peterborough as a "New Party" candidate was a significant
boost for the movement to replace the Co-operative Commonwealth Federation with an unnamed
"New Party" which would be integrated with the labour movement. Pitman's candidacy in a
riding in which the CCF was traditionally weak was seen as a test of this concept and his upset
victory convinced the CCF and the labour movement to launch the New Democratic Party
(NDP). Gilles Duceppe's 1990 upset landslide by-election victory in Laurier—Sainte-Marie with
66% of the vote on behalf of the newly formed Bloc Québécois was the first electoral test for
what was initially a loose parliamentary formation created two months earlier after several
Quebec MPs defected from the Progressive Conservative and Liberal parties to protest the failure
of the Meech Lake Accord and provided the first indication that the party could be a serious
force in the province of Quebec. On the strength of the by-election victory, the BQ went on to be
officially formed as a party in 1991 and to win 54 seats in the 1993 federal election, enough to
form the Official Opposition.

By-elections may occur singly, or in small bunches, especially if the authority responsible for
calling them has discretion over the timing and can procrastinate. They are sometimes bunched
to save money, as holding multiple by-elections is likely to cost more than holding a by-election

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to fill the vacancies all at once. In Canada, in 1978, 15 by-elections were held on a single date,
restoring the House of Commons to 264 members. The media called it a "mini-election", a test of
the Liberal government's popularity with a general election due in less than a year. The 15
districts stretched from Newfoundland to British Columbia, and produced some unexpected
results, for example, an NDP candidate winning in Newfoundland for the first time. In
September 1984 the Leader of the Greater London Council Ken Livingstone and 3 other Labour
councillors resigned and stood in simultaneous by-elections in an attempt to stage a mini-
referendum on the Thatcher government's proposal to abolish the GLC. The effect of the
manoeuvre was blunted when the Conservative Party refused to stand candidates against them,
and the following year the GLC was abolished.13

CONCLUSION:

Even though all bye-elections do not have the effect of changing the Government, the results of
bye-elections will still act as an indicator of public point of view. Another major perception
attributed to bye-elections is that, though their results are not real yardstick of public opinion, it
is believed the other way around, thereby having a reflection in the upcoming general elections.
Apart from these, it brings to light the local issues of the concerned constituencies. That is, the
entire country or the entire state speaks about the politics and betterment of that particular
constituency, till the bye-elections are held. All these factors make Bye-elections, an important
political phenomenon. That too, in a country like India which has the largest Democracy in the
world, bye-elections are paramount as they serve as the requisite catalyst and facilitator for
reinstituting stability and endurance

13
Rallings, Colin; Thrasher, Michael (1997). Local Elections in Britain. London: Routledge. p. 172. ISBN
9780203412756.

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