Experts say the ECI has the right to call by-polls anytime within six months after the seat falls vacant

The Election Commission on Thursday announced elections to only three Assembly seats – one each in Bihar, Madhya Pradesh and Gujarat, even as there are currently at least 14 vacancies in state legislatures across the country, apart from six vacant parliamentary seats, three each in the Lok Sabha and Rajya Sabha.

The Representation of the People Act mandates polls within six months after a seat becomes vacant, but experts said the ECI has discretion to choose when to conduct polls within those six months. According to them, the courts have generally shown respect for the decisions of the ECI in electoral matters.

The RPA Act also provides for two exceptions to this six-month rule: if the remainder of the term is less than one year, or if the Election Commission, in consultation with the Union Government, confirms that it is difficult to hold by-elections within the stipulated time. However, a third exception has been recognized based on judicial interpretation – if there is a pending election petition relating to that vacancy.

Too fast, too slow

Opposition parties have repeatedly questioned the “rush” and “delay” in the announcement of the general election.

For instance, the ECI’s announcement on Thursday of skipping polls in Madhya Pradesh’s Datia assembly seat led to protests by the Congress, which questioned the electoral body’s “rush”. The seat fell vacant following the disqualification of Congress’s Rajendra Bharti in April after he was convicted in a fraud case. He challenged the verdict in the Delhi High Court and sought a stay. His plea is due to be heard on July 8 and polls are scheduled for July 30.

According to legal experts, the ECI can go ahead with its bypass schedule until and unless the court grants a stay.

“Until the court allows the by-election, the ECI can call by-polls at any time within six months, even if the case is pending,” senior Supreme Court lawyer Sanjay Hegde told The Hindu.

“Delay in favor of BJP”

While protesting the hasty announcement of the Datia bypoll, the Congress has also pointed to the delay in holding the by-election to the Milkipur Assembly seat in Uttar Pradesh, which fell vacant after the election of Samajwadi Party’s Awadesh Prasad to the Lok Sabha in the 2024 general election. The opposition SP accused the ECI of postponing the bypoll to give the BJP time to strategize and repair its image after suffered significant setbacks in the Lok Sabha polls.

However, in this case, the BJP candidate’s election petition was pending in the Allahabad High Court and the poll was scheduled only in February 2025 after the High Court petition was finally withdrawn.

The Supreme Court in Election Commission of India v. Telangana Rashtra Samithi (2010) held that a seat cannot be considered vacant for by-polls while the validity of its previous election itself is in question. The commission must therefore wait for the outcome of the election petition before proceeding with the by-election, it said.

Pending survey petition in Datia

“This interpretation is correct because an election petition can ultimately lead to a court declaring another candidate duly elected. If a by-election has already taken place by then, the declaration would become largely moot,” said Swapnil Tripathi, head of the Charkha, Constitutional Law Center at the Vidhi Center for Legal Policy.

Of the three vacant Lok Sabha seats, for example, the Bashirhat seat in West Bengal has an election petition pending since the 2024 elections. Despite the fact that Trinamool Congress presiding MP SK Nurul Islam died in September 2024, no by-elections have been called till date.

No pending petitions elsewhere

However, there are two other vacant LS seats where by-polls are yet to be announced despite no pending petition — Shillong in Meghalaya, which fell vacant after the death of MP Ricky Andrew J. Syngkon in February this year; and Nagaon in Assam, which has had no MP since March when former MP Pradyut Bordoloi resigned.

There are also vacancies in the Rajya Sabha, which was created due to the resignation of three Trinamool Congress MPs last month.

In addition, the Tamil Nadu Assembly has seven vacant seats. Chief Minister C. Joseph Vijay resigned from one of the two seats he had won in the 2026 elections, leaving one vacant, while the other six were created when AIADMK legislators resigned to join the ruling Tamilaga Vettri Kazhagam (TVK). On 10 May, Karnataka Minister D. Sudhakar died, leaving the Hiriyur Assembly seat vacant. Three Uttar Pradesh Assembly seats (Ghosi, Faridpur and Duddhi) are also lying vacant due to the deaths of sitting legislators.

ECI has not yet announced election dates for any of these constituencies.

Published – 03 Jul 2026 23:07 IST