From Maharashtra to Bengal, how India’s courts struggle to keep pace with political realities

TMC LoP dispute illustrates a recurring template: by the time courts determine if a political decision was lawful, the practical consequences of that decision may already have taken effect.

File photo of rebel TMC MLA Ritabrata Banerjee | ANI

New Delhi: The Calcutta High Court’s refusal to stay the decision of the West Bengal Assembly Speaker recognising rebel Trinamool Congress (TMC) legislator Ritabrata Banerjee as the Leader of Opposition (LoP) has exposed a familiar dilemma in Indian constitutional law.

While questioning whether the Assembly Speaker could recognise an expelled legislator as LoP without the consent of the political party itself, it has declined to stay the appointment, allowing Banerjee to continue in the post while the litigation proceeds.

The episode illustrates a recurring template: by the time the courts determine whether a political decision was lawful, the practical consequences of that decision—be it regarding anti-defection and election or constitutional crises—may already have taken effect.

The problem was illustrated earlier this month when the Madras High Court ruled that the 2016 Tamil Nadu elections in Radhapuram was wrongly decided. The verdict came nearly a decade after the election and years after the Assembly term had expired.

Such instances are hardly new. In Kashi Nath Mishra v. Vikramaditya Pandey, a challenge arising from the 1991 Uttar Pradesh elections was dismissed by the Supreme Court in March 1996 after the Assembly had completed its term.

Similarly, a recount dispute from the 2000 Bihar polls met the same fate when the Supreme Court heard Mundrika Singh Yadav v. Shiv Bachan Yadav case in February 2005.

And in P.H. Pandian v. P. Veldurai, the disqualification litigation arising from the 1996 Tamil Nadu elections continued till 2001, when the Supreme Court declared the appeal infructuous since the Assembly’s term had elapsed.

Ironically, Pandian’s son P.H. Paul Manoj Pandian challenged Veldurai’s election in 2006 on the same disqualification grounds. The SC ruled in his favour in 2011, but only at the very end of the Assembly’s term.

Senior advocate Amit Desai notes that the phenomenon is hardly a recent development. “It’s been around for years, this problem of elections, of determination of election petitions.” The Radhapuram litigation, he says, is only the latest example of a structural problem that has shadowed India’s election law system for decades.

The Supreme Court’s landmark 1952 decision in NP Ponnuswami v. Returning Officer established a foundational principle: courts should generally not interrupt elections while they are underway. Instead, disputes are to be raised after the election through specialised petitions. The essence is to avoid constant judicial intervention that can derail the electoral process.

Senior advocate Aman Lekhi, however, argues that the principle was developed on the assumption of an essentially uncorrupted electoral process and may be ill-equipped to address situations where the process itself is under challenge.

“When that process is corrupted, the Ponnuswamy principle cannot make the court look away from the process that vitiates the outcome.”

The Maharashtra crisis

The constitutional battle arising out of the 2022 Maharashtra political crisis presents a different manifestation of the same concern. When a faction of Shiv Sena MLAs rebelled against Uddhav Thackeray, a series of disputes emerged concerning the Governor’s powers, the anti-defection law, the authority of the Speaker, and the recognition of rival political factions. At the heart was a question central to electoral politics: which faction was the “real” Shiv Sena?

In May 2023, the Supreme Court delivered an extensive judgment addressing many of those questions. It held, among other things, that the Governor erred in calling for a floor test on the material available to him.

Yet, it declined to restore the Thackeray government, noting that the chief minister resigned before the floor test could occur. By that time, the Mahayuti government was functioning for many months.

For Lekhi, such outcomes reveal a troubling disconnect between constitutional principle and institutional practice. “What the [Maharashtra] Governor did was wrong, but I will not reinstate [the previous government]. I’ll send the matter back to the Speaker, knowing the Speaker is not an independent agent,” he says, summarising the contradiction.

The episode highlighted a recurring dilemma in constitutional adjudication. While courts may ultimately clarify the law, political events often move during the pendency of litigation. The longer a dispute remains unresolved, the greater the possibility that judicial remedies become constrained by facts that have already become entrenched.

The Arunachal exception

Not every constitutional dispute ends the same way like in Maharashtra. The 2015–16 Arunachal Pradesh constitutional crisis provides a notable exception. After a series of controversial interventions by the Governor culminated in the dismissal of the Nabam Tuki government and the imposition of President’s Rule, the matter reached the Supreme Court.

In 2016, the SC held that the Governor’s actions were unconstitutional and restored the status quo ante, effectively reviving the dismissed government.

Unlike in many election and political disputes, the Court’s ruling reversed the consequences of the constitutional violation. The case remains a rare example of judicial intervention successfully realigning political reality with constitutional principle.

Defectors

Perhaps the clearest example of judicial delays rendering an important dispute infructuous comes from the increasing frequency of political defections as seen in Ritabrata Banerjee’s case and the defection of 7 of the Aam Aadmi Party’s 10 Rajya Sabha MPs to the BJP.

Defectors claim protection under the anti-defection law’s ‘merger’ exception, requiring them to show that two-thirds of the party has agreed to merge with another. Does ‘two-thirds’ mean only the legislative members, or the party as a whole? The question remains open, because such cases are often moot by the time they are heard.

In 2019, for instance, 10 out of 15 Congress MLAs in Goa defected to join the BJP. Their claim of ‘merger’ protection was upheld by the Bombay High Court in February 2022. By this time, the Assembly’s term had expired. The Supreme Court declined an urgent review on the grounds that the point was infructuous.

The lack of a real resolution to the question has meant that, in practice, lawmakers assume they will be able to defect without real consequences.

Lekhi argues that the problem is aggravated by procedural choices made during litigation itself. Courts, sometimes, defer disputes to institutional actors whose neutrality is contested like in the case of Maharashtra, or allow proceedings to continue in ways that effectively determine outcomes before the legal question has been resolved, he says.

These, he says, are “aggravating factors which sully the entire process or make the outcome murky.”

The cost of delays

The common thread running through Radhapuram, Maharashtra and anti-defection disputes is the growing gap between legal principle and political reality. As Lekhi sees it, the problem is not merely one of delay. “The way the system works, politics trumps law.”

“Even when verdicts are delivered, while they may be doctrinally sound, they are pragmatically absolutely worthless. Apart from affirming the principle, the applicability to concrete situations is lost.”

That failure, Lekhi argues, undermines the central purpose of law itself. A functioning legal system requires “an element of congruence between what the law says and how the law works.” In electoral litigation, that congruence is increasingly difficult to find.

Over the years, both the Supreme Court and various High Courts have repeatedly acknowledged that election petitions and electoral disputes lose much of their value if they are not decided before the expiry of the relevant legislative term.

In fact, Section 86(7) of the Representation of the People Act provides that election petitions should be tried “as expeditiously as possible” and that an endeavour should be made to conclude them within six months.

In 2015’s Mohd. Akbar v. Ashok Sahu, the SC remarked that this reflected Parliament’s “pious hope” that election disputes would be resolved quickly.

During the Radhapuram litigation, the Madras High Court remarked that a verdict delivered after the expiry of the Assembly term risked reducing the process to a “grave mockery of justice.” The result, it said, was that the voters were “forced to bear a person as their Assembly representative though he is not duly elected.”

Desai cautions against attributing the problem solely to judicial unwillingness to resolve these cases fast. “The system is overburdened with many important issues, all of which are high priority for the people affected.” The challenge, he argues, is one of institutional capacity and priority-setting as much as constitutional doctrine. “This is a process of determination and management of priorities.”

Parliament should consider more ambitious interventions, the senior advocate suggests. “The time has come where, in these matters, there should be a constitutional amendment … The statutory time lines aren’t effective.” Certain categories of election disputes, he says, should be resolved within strict timelines of “two or three months, or six months at most.”

That may require specialised institutions. “You have to have a special court, an expedited process. The entire process should be completed within a certain period of time,” Desai says. He also points to the need for legislative reform to provide greater clarity in election law. “There is a desire to reform, but a lot of the reform has to be at the hands of Parliament.”

Still, the judiciary has a role in accelerating the process. Desai points to the Supreme Court ordering appellate tribunals to be formed to hear voter appeals arising from the Special Intensive Revision (SIR) exercise in West Bengal.

For Lekhi, the deeper mistake is to imagine that law and politics can be neatly separated in the first place. “Law is coupled with politics. You can’t decouple it. This is an integral part of the political process. You can’t ignore either.”

The challenge for courts is to ensure that those principles remain capable of shaping political reality before that reality has already moved on, he asserts.

Sahaj Sankaran is a TPSJ alum, currently interning with ThePrint.

(Edited by Tony Rai)