When Principle Meets Polling Day

Justice Ujjal Bhuyan has been unexpectedly generous to one of my harmless pastimes: exercising the mind against propositions that initially sound incontrovertible.

Only recently, his reflections on judicial delay, post-retirement appointments and institutional morality prompted an essay titled The Sound of Applause: When diagnosis becomes a substitute for reform. The concern there was not that the principles he articulated were wrong. Quite the opposite. They were so obviously right that they raised another question: what happens after the applause dies down? Diagnosis is easier than repair.

Justice Bhuyan has now kindly provided another exercise.

Speaking at the valedictory session of the Justice Bodh Raj Sawhney Memorial Moot Court Competition at NALSAR University of Law, Hyderabad, he turned to universal adult suffrage and the constitutional significance of the vote. His language was characteristically emphatic. If any process resulted in the disenfranchisement of millions of Indian citizens, he argued, such a process would be intrinsically arbitrary. No authority could do it; no court could condone it.

As constitutional principle, there is little to quarrel with.

The difficulty begins precisely there.

The proposition everyone can agree upon

No democratic constitution can casually tolerate the arbitrary removal of eligible citizens from the electoral roll. Nor should an enrolled living voter simply disappear from it without procedural protection.

Justice Bhuyan invoked Lal Babu Hussain v Electoral Registration Officer, the Supreme Court's 1995 judgment dealing with deletion from electoral rolls where citizenship itself had been questioned. The Court insisted upon notice, disclosure of the material giving rise to the doubt, an opportunity to respond and a reasoned determination.

These are important protections.

But invoking them does not resolve the contemporary predicament. It establishes the principle.

Nobody needs much persuasion that arbitrarily stripping millions of eligible Indians of their votes would be constitutionally intolerable. The difficult question is whether that accurately describes what has happened - and, more importantly, what an institution should do when entitlement itself is disputed.

Deletion is not automatically disenfranchisement.

A dead voter removed from a roll has not been disenfranchised. Neither has a duplicate registration been removed while a valid registration remains. Nor is somebody who has permanently moved and enrolled elsewhere in the same position as a living eligible elector who remains at the address but has wrongly disappeared from the roll.

The denominator matters.

So does the remedy.

Then West Bengal complicates everything

This is where the intellectual exercise becomes interesting.

The West Bengal Special Intensive Revision generated an enormous number of contested exclusions. Millions appealed. The administrative machinery proved incapable of determining all those appeals before polling.

That itself deserves severe institutional scrutiny. An administrative process that generates a corrective workload far beyond the capacity of the machinery created to resolve it has a design problem, whatever one's political sympathies may be.

But something even more interesting happened.

The matter was already before the Supreme Court.

The Court knew that appeals would remain undecided when West Bengal went to the polls. It nevertheless allowed the election to proceed. More importantly, it expressly held that the mere pendency of an appeal by an excluded elector did not confer an entitlement to vote.

That decision deserves careful thought before anyone reaches for either applause or outrage.

Suppose an elector has been excluded but appeals. There are at least three possibilities.

Allow every appellant to vote provisionally, and lodging an appeal potentially defeats the verification exercise itself.

Prevent every unresolved appellant from voting, and some people subsequently found to have been eligible will inevitably have missed that election.

Postpone polling until every appeal is decided, and an administrative process involving millions of disputed records acquires the ability to disrupt the constitutional electoral calendar.

There is no slogan that resolves this.

There is only judgment.

Was that disenfranchisement?

Here language becomes important.

A citizen wrongly excluded from one election has undoubtedly suffered a serious deprivation. A vote lost on polling day cannot subsequently be returned. Restoration to the electoral roll six months later cannot recreate that ballot.

But is every such temporary exclusion equivalent to making somebody a citizen "without voting rights"?

Not necessarily.

If the underlying constitutional entitlement survives, an appeal exists, the claim is subsequently adjudicated and the voter is restored for future elections, we are dealing with something more complicated than permanent disenfranchisement.

We are dealing with an imperfect democratic system attempting to determine who is entitled to exercise a right at a particular moment - and sometimes getting the answer wrong.

That distinction does not trivialise the lost vote. It makes the problem harder.

The Supreme Court itself apparently recognised this. Faced not with a lecture hall but with an election approaching on the calendar, it made an accommodation. Pending appeals would not automatically confer voting rights. The election would proceed.

Perhaps that was the least bad solution.

Perhaps there was a better one.

That is precisely the conversation worth having.

Principle meets polling day

There lies the difference between lecturing and governing, between declaring a principle and living with its consequences.

Principles can be absolute because they inhabit sentences. Institutions inhabit the real world.

An eligible citizen should not be wrongly denied a vote.

Electoral rolls should contain only eligible voters.

Procedural fairness should be available to somebody facing deletion.

Appeals should be decided properly.

Elections must nevertheless take place according to a constitutional timetable.

Each proposition sounds perfectly reasonable in isolation.

The difficulty begins when they cannot all be perfectly satisfied simultaneously.

That is not peculiar to elections. It is the ordinary condition of serious decision-making.

Medicine knows it intimately. Every patient deserves optimal care; resources are nevertheless finite. Courts believe every litigant deserves timely justice; their cause lists say otherwise. Governments promise universal entitlements while administrators discover budgets, personnel, geography and time.

Real institutions therefore live by adjustment.

Democracy perhaps more than any other system depends upon it.

The judgment Justice Bhuyan cited

This makes the invocation of Lal Babu Hussain particularly interesting.

The earlier case arose in a different factual setting, involving existing electors whose citizenship was being questioned and the procedural safeguards required before their names could be removed. Its importance lies in protecting individuals from arbitrary administrative action.

But the contemporary SIR controversy presents a broader operational problem: mass verification, disputed exclusions, appeals, administrative capacity and an immovable polling date.

The principle from the earlier judgment illuminates that problem. It does not solve it.

Indeed, Justice Bhuyan's own Court had already encountered the distinction.

That is why categorical declarations about what "no court can condone" invite an obvious question: what precisely should a court do when the competing constitutional considerations arrive together at its door?

That is not whataboutery.

It is adjudication.

Justice delayed, revisited

There is another irony.

Justice Bhuyan has also spoken forcefully about the familiar maxim that justice delayed is justice denied.

Again, unquestionably true.

But the West Bengal appeals give the maxim an unusually concrete meaning.

If an electoral appeal is decided after polling day, a successful appellant may regain the right to vote in future elections. What cannot be restored is the election already missed.

Yet the Supreme Court itself confronted unresolved appeals and permitted polling to proceed.

This does not necessarily demonstrate judicial failure. It demonstrates something more useful: even courts must sometimes accommodate precisely the imperfections that sound intolerable from a lectern.

That should provoke reflection rather than accusation.

A law-school audience might indeed have benefited enormously from hearing a Supreme Court judge wrestle publicly with that contradiction.

How does a court protect electoral integrity while protecting the individual elector?

What remedy should operate while eligibility remains genuinely disputed?

At what point does administrative delay become constitutional injury?

Should an unresolved appellant vote provisionally?

If so, what prevents appeal itself becoming the mechanism for circumventing verification?

And if not, what remedy exists for the eligible citizen vindicated only after the election?

These questions have no applause lines.

That is why they matter.

From moral clarity to institutional responsibility

The temptation in public discourse is always to divide the stage neatly.

One institution violates rights. Another protects them.

One judge speaks courageously. Another compromises.

One side possesses constitutional morality. The other requires correction.

Real institutional life is rarely arranged so conveniently.

The Election Commission may have created a process whose scale overwhelmed its own corrective machinery. The Supreme Court may nevertheless have been justified in refusing to suspend an election indefinitely. Eligible voters may consequently have lost an opportunity to vote. Subsequent restoration may repair their status without repairing the election already missed.

All these propositions can coexist.

The interesting question is therefore not simply who was right.

It is how institutions learn from what went wrong.

If millions of appeals overwhelmed the available machinery, the next revision requires greater adjudicative capacity, different sequencing, earlier verification, better notice, provisional mechanisms or some other innovation. Courts examining such processes must similarly ask not merely whether a remedy formally exists but whether it can operate before the right it protects becomes practically useless.

That is reform.

Everything before it is diagnosis.

The lecturer eventually meets the institution

There is a broader sociological curiosity here.

Judges who speak critically about their institutions occupy an interesting position. They are simultaneously observers of the system and participants in it.

Time gradually narrows the distance between those two roles.

Every additional year on the Bench adds judgments, compromises, institutional accommodations and unresolved problems to the judge's own record. Eventually the principles articulated from podiums can be compared with the predicaments encountered in courtrooms.

Institutions have an inconvenient habit of confronting their lecturers with their own lectures.

That is not an argument against judges speaking publicly. Quite the opposite. Judicial speeches can illuminate constitutional values far beyond individual cases.

But perhaps their greatest educational value lies not in announcing where the constitutional line ought to be drawn.

It lies in explaining what happens when reality refuses to remain conveniently on either side of it.

The sound after the applause

In The Gulag Archipelago, Aleksandr Solzhenitsyn famously located the boundary between good and evil not between groups of people but through every human heart.

Institutions deserve similar humility.

Their boundaries do not conveniently separate the virtuous from the compromised. Integrity and error, principle and accommodation, courage and convenience can inhabit the same institution - and sometimes the same decision.

Democracy is built in that uncomfortable territory.

Its greatness does not lie in never making mistakes. Nor does constitutional government require pretending that every collision between rights has a morally immaculate solution.

It lies in creating mechanisms for correction, examining whether those mechanisms actually work, and adjusting them when they do not.

Justice Bhuyan is therefore right to remind the country of the constitutional importance of the vote.

But his intervention also offers a more interesting lesson than perhaps intended.

The easy task is to tell us what democracy must never do.

The harder task begins when democracy asks:

What, then, shall we do?

For providing another opportunity to exercise the mind over that question, Justice Bhuyan deserves thanks.

 

 

Author's Note: Each essay begins with a question, observation, experience or public event worth examining beyond its immediate controversy. I determine the argument, structure and final prose, drawing on professional experience and research. I use AI as an editorial collaborator to research, develop structure, clarify, draft and edit until a piece accurately reflects my thinking and intent. The final wording and responsibility remain mine.