Tryst with the Constitution: Vacancies, Bye-Elections and Election Petitions

Last week, the Election Commission announced bye-elections in three Assembly constituencies. However, reports indicate that there are currently fourteen vacant seats in State Assemblies and six in Parliament for which bye-elections have not yet been announced. According to Section 151A of the Representation of the People Act, 1951 (‘RP Act’), the Election Commission must conduct a bye-election within six months of a seat falling vacant. However, the Act carves out two exceptions: where the remainder of the term is less than one year, or where the Election Commission, in consultation with the Union Government, certifies that it is difficult to hold the bye-election within the prescribed period. In several existing vacant seats, a third judicially recognised exception is also in play.

In Election Commission of India v. Telangana Rashtra Samiti (2010), the Supreme Court effectively recognised a third exception to Section 151A and held that where an election petition challenging the previous election is pending, the seat cannot be treated as available for a bye-election, and the Election Commission must await the outcome of the petition before proceeding with bypolls.

The Court reconciled two provisions of the RP Act—Section 151A, which prescribes the timeline for conducting bye-elections, and Section 84, which enables a petitioner challenging an election to seek a declaration that they, or another candidate, have been duly elected. In doing so, the Court effectively distinguished between two categories of vacancies: those where an election petition challenging the previous election is pending, and those where no such petition has been filed. It held that vacancies falling in the former category cannot be treated as available for bye-elections under Section 151A until the election petition is decided, whereas vacancies in the latter category may be filled in accordance with the statutory timeline. It must be noted that this interpretation leaves the Election Commission with no discretion. Once an election petition is pending, it must await its outcome before proceeding with a bye-election.

The underlying rationale behind this classification is sound. First, an election petition may ultimately result in a declaration that another candidate was duly elected. If a bye-election has already been conducted by then, such a declaration would become largely otiose. Second, it avoids the expense of conducting another election. Finally, it protects the interests of the constituency by ensuring that it is represented by the candidate who ought to have been elected in the first place.

However, a different approach was adopted by a co-ordinate bench in Nitin Bandopant Salagre v. State Election Commission (2019), where the State Election Commission had notified bypolls for the office of a councillor despite the pendency of an election petition. Although the Court referred to Telangana Rashtra Samiti, it ultimately reached a different conclusion and held that the statutory scheme does not indicate that the mere filing of an election petition automatically bars the State Election Commission from proceeding to fill a casual vacancy. Unlike Telangana Rashtra Samiti, the Court here granted the Commission greater discretion in matters concerning by-elections and observed that the pendency of an election petition is merely one of the factors that it may consider while deciding whether to conduct a bye-election.

The Court observed,

“But we make it clear that the statutory Scheme does not indicate that by mere filing of an election petition questioning the election of returned candidate of ward and seeking a declaration in favour of the election petitioner shall ipso facto put an embargo in the right of State Election Commission to proceed to fill up the casual vacancy.”

Effectively, in Nitin Bandopant, the Court prioritised continued representation of a constituency while preserving administrative flexibility, in contrast to the earlier approach, which prioritised the integrity of the electoral mandate.

However, it must be noted that the Court clarified that the facts and statutory framework in the present case, namely the Mumbai Municipal Corporation Act, 1888, were different from those in Telangana Rashtra Samiti and the earlier decisions which involved the RP Act. Nevertheless, its ultimate conclusion sits uneasily with those judgments, as the two reach opposing conclusions on the discretion of the Election Commission. It is likely that this tension will be addressed in future cases.

The interpretation in Telangana Rashtra Samiti gives prominence to the integrity of the electoral process and the possibility of giving effect to the true electoral mandate. However, vacant seats also present a competing concern—that every constituency should enjoy timely representation. The Supreme Court’s preference for the former proceeds on an implicit assumption: that election petitions themselves will ordinarily be decided within a reasonable period, thereby ensuring that both interests are protected. This assumption is reflected in the RP Act itself, which provides that the trial of an election petition should be completed expeditiously, possibly within six months of its presentation. In practice, however, this timeline is rarely complied with.

Election petitions frequently remain pending for years and, in several instances, beyond the tenure of the very House they concern. By the time the dispute reaches final adjudication, fresh elections have often been conducted, rendering it largely academic. Even where an election petition is decided expeditiously, appeals before higher courts frequently prolong the litigation.

In a recent case, the Madras High Court criticised the Supreme Court for keeping an election petition pending for over six years. By the time the appeal was decided, the Assembly had completed its term, and two subsequent elections had already been conducted.

The High Court observed,

“13. The Hon’ble Supreme Court, after keeping the matter pending for about six years, thought fit that the question has to be kept open in view of the lapse of time and the term of office having expired and no useful purpose would be served in adjudicating upon the said question in the Civil Appeal. With great respect, the Hon’ble Apex Court should have answered this question since this Court has already as Court of first instance/trial Court given a finding in respect of the above question.”

Such delays prejudice not only the candidate seeking to establish that they were, in fact, duly elected, but also the constituency itself. The consequences become even more significant where a bye-election cannot be conducted because the election petition remains pending. In such cases, judicial delay leaves the constituency without representation, depriving citizens of representation in legislative debates, committee proceedings, votes on important public issues, and spending on constituencies.

In 2024, the Supreme Court had observed that “the provisions of Section 151A of the Representation of the People Act, 1951 would need interpretation”. However, the matter has remained pending ever since, with no substantive hearing on the issue.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.