What is a Bye-election? When and how is it conducted?

The word ‘election’ simply refers to the act of choosing someone for an official job, in a formal and organised 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. This article will vividly explain what is a bye-election, under what circumstances it is held and how it is conducted, particularly with reference to India.

Meaning of Bye-election:

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

a. Council of States (or)

b. House of People (or)

c. State Legislative Assembly (or)

d. State Legislative Council

2. becomes

a. vacant (or)

b. declared vacant (or)

c. 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

a. Members of Legislative Assemblies or electoral college concerned (or)

b. Assembly constituency (or)

c. Parliamentary constituency (or)

d. 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 relation to the election of members to fill such vacancy.

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 its MLA, K.Rathamani.[i] 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 others[ii] 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.
    • 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.[iii]
    • 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,[iv] 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,[v] the 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.
  • 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.Thomas,[vi] 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.

2. 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.[vii]
   • 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 Pradesh,[viii] 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 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 Commissioner[ix] 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 LokSabha 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 LokSabha is less than 1 year.[x]

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.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference:

[i] https://www.thehindu.com/news/national/tamil-nadu/vikravandi-dmk-mla-dead/article27944776.ece

[ii] 2003 VIIAD Delhi 633

[iii] https://timesofindia.indiatimes.com/city/chennai/vasanthakumar-resigns-mla-post-dmk-may-contest-in-nanguneri/articleshow/69568892.cms

[iv] 1994 AIR 1558

[v] 1996 AIR 1060

[vi] Civil Appeal No. 5003 of 2006

[vii] https://www.thehindu.com/archives/from-the-archives-march-13-1969-dp-mishras-election-held-void/article26514666.ece

[viii] 1967 AIR 1211

[ix] W.P.No.46107/2018

[x] https://www.thenewsminute.com/article/ysrcp-mps-resignation-no-bye-election-5-seats-andhra-ec-clarifies-89575