The 'hands-off' doctrine in election disputes: A case for reconsideration

Democracy, as the Supreme Court has repeatedly reminded us, is not merely an incident of our constitutional scheme, but a part of its basic structure.

In Kihoto Hollohan v. Zachillhu, the Supreme Court held that ‘democracy’ and ‘free and fair elections’ are inseparable twins. In Rajbala v. State of Haryana, the Supreme Court described the right to vote and right to contest in elections to local bodies as constitutional rights. Earlier, in Jyoti Basu v. Debi Ghosal, the Supreme Court held that the said right is neither a fundamental right nor a common law right, but a statutory right. Rajbala reads it to constitutional rank at least in elections to panchayats.

Nothing in this article turns on winning that classificatory battle. Constitutional right or statutory right, the interest at stake is the same and the Court’s own basic structure jurisprudence has already told us how much it weighs.

Yet, when disputes touching upon the electoral process are actually brought before the constitutional courts, a curious reluctance sets in. The courts, almost as a matter of settled practice, decline to entertain such disputes and relegate the aggrieved party to the statutory remedy of an election petition. The doctrine finds its origin in NP Ponnuswami v. Returning Officer and has been consistently reaffirmed most recently in State of Goa v. Fouziya Imtiaz Shaikh, where the Supreme Court held that once the electoral process has commenced, there must be a complete hands-off approach on the part of the High Courts exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950.

A real tension lies at the heart of this jurisprudence. If free and fair elections are indeed a basic feature of the Constitution of India and the right to vote and right to contest at least in local body elections is given constitutional character, it is difficult to reconcile this position with a rule that leaves illegalities in the electoral process wholly unaddressed by the constitutional courts until the election is over. By that time, in most cases, the term of the elected body has run its course and the grievance has become academic.

The rationale for the hands-off approach is not without force. Elections must proceed without interruption and courts have been understandably reluctant to become instruments of delay in a process that is time-bound by its very nature. This caution finds statutory anchor in Article 329(b) of the Constitution of India and also similar provisions being found in Articles 243-O and 243-ZG, which bar judicial interference in elections to the legislatures and local bodies respectively. The difficulty arises when the same restraint is transplanted, almost reflexively, to stages and institutions to which Article 329(b) and Articles 243-O and 243-ZG of the Constitution of India have no application at all.

Herein lies the tension. The doctrine of 'hands-off' approach postpones adjudication in the name of election process. Postponement is a scheduling decision, legitimate so long as the hearing eventually happens and can still matter when it does. The assumption fails on two counts. It fails contingently whenever election petitions are decided after the term of the body has expired – for then the ‘remedy’ can neither restore the wronged candidate nor unseat the wrongly elected. It also does not give the voter who has been wrongly excluded his right to vote or also does not oust the voter who has been wrongly included. The adjudication has not been postponed, but forgone. And it fails structurally when the system knows this will happen – where the timetable of the forum, measured against the term of the body makes mootness not a risk but an expected outcome. As a result, it converts the constitutional promise of free and fair elections into a guarantee without a working remedy.

To explain the effect of postponement and how it is counterproductive, I give a simple example. A member of a district cooperative society discovers, on the eve of society’s quinquennial election, that the voters’ list has been prepared in violation of governing rules. He moves the High Court under Article 226 of the Constitution of India. The petition is dismissed at the threshold. The Court recites that once the election process has been set in motion, in must be allowed to run its course; that the remedy lies in the election petition after the declaration of results; and it cites the line of authorities beginning with NP Ponnuswami.

The statutory dispute by way of election petition is raised in time and is not decided. By that time, the term of the elected body has served out its full term and demitted office. No court or tribunal ever pronounces on the legality of the roll. The next election is declared by the same board and the electoral roll is prepared by the same board which got elected by violating the rules, by the same method. Therefore, in result, the Court declined to intervene when the intervention could have been effective. Later, the remedy proved, as it routinely proves, to be no remedy at all.

What makes the same more ironic is that the election was the one to which a constitutional bar on judicial interference never applies. The elections to cooperative societies, market committees, development councils, medical councils, public trusts etc stand outside the analogous bar enacted for parliament, state legislatures, panchayats and municipalities. The restraint the High Court applied was not commanded by the Constitution or statutes. It was a habit, a judicial reflex formed within Article 329(b).

This article is about that habit; its origin, its migration and its cost.

The hands-off approach has never, in truth, been absolute. The Supreme Court itself, in Election Commission of India v. Ashok Kumar, sought to chart a middle course between complete non-interference and unrestrained intervention. It held that where the action impugned is without jurisdiction, ultra vires, or in breach of principles of natural justice or the statutory authority, judicial intervention is available without awaiting the result “to correct or smoothen the election process”. It is worth pausing on what Ashok Kumar is. It is neither a dissent nor an outlier, nor an academic gloss. It is a considered judgment of the Supreme Court that hasn't been overruled for a quarter of a century, whose stated purpose was to chart the course between a complete no-no approach and an overwhelmingly positive one.

A Full Bench of the Punjab and Haryana High Court held as early as Dev Prakash Balmukund v. Babu Ram Rewti Mal that where the electoral roll itself is illegal, no election held on its foundation can be permitted to stand. That proposition was relied upon by the Supreme Court in Bar Council of Delhi v. Surjeet Singh and reaffirmed in Pundlik v. State of Maharashtra, where the Court held that action taken by an election officer in preparing the electoral roll, if in violation of the governing rules, is illegal and open to challenge under Article 226. It is, therefore, clear that the constitutional courts have, in appropriately limited circumstances, been prepared to intervene at the threshold of the electoral process.

The Supreme Court itself appeared to recognise this difficulty in Union Territory of Ladakh v. Jammu and Kashmir National Conference. Particularly paragraph no. 37 and 39 of that judgment are instructive: the Court there observed that the hands-off approach warranted reconsideration and held that where an order of the election authority has the effect of disturbing the level playing field, it is the duty of the constitutional courts to intervene and nip the illegality in the bud.

That moment of introspection, however, appears to have been short-lived. In the subsequent, recent decision in Meenakshi Natarajan v. Election Commission of India, the Court reverted to the more familiar position. It held that any grievance capable of vitiating an election, including the improper rejection of a nomination form, must be agitated only after the election is over, by way of an election petition and cannot be made the subject matter of challenge before any court while the election is in progress.

In my respectful view, this degree of deference carries a real institutional cost. Unchecked, it allows entrenched interests to manipulate the electoral process without the possibility of timely correction, tilts the level playing field that free and fair elections presuppose and, over time, erodes public confidence in the courts as guardians of the electoral process. A constitutional court that is powerless or, worse, reluctant to arrest an illegality at its inception, particularly in a domain as central to democracy as elections, does the democratic project no service.

It is respectfully submitted that the time has come for a more calibrated re-examination of this doctrine, one that preserves the undoubted institutional value of allowing elections to proceed without undue interruption, while not permitting that value to become a shield behind which manifest illegality escapes all judicial scrutiny. A reluctant judiciary, however well-intentioned in its desire to avoid administrative disruption, risks weakening institutional accountability and emboldening executive overreach, secure in the knowledge that intervention is unlikely.

Constitutional courts exist, not least, to ensure that the basic structure of our democracy - of which free and fair elections form an inseparable part - is not reduced to a formal guarantee without a practical remedy. A judiciary alert to this responsibility and willing to act on it in appropriate cases would serve that structure far better than one that treats hands-off as an invariable rule rather than a considered exception. The country’s democratic architecture is kept, in the end, not by the parchment of its guarantees but by the institutions alert enough to enforce them in time.

Dipan Desai is an advocate practicing before the Gujarat High Court.