Professor Tarun Khaitan’s scholarship on political parties and ‘guarantor institutions’ has been cited in a landmark judgment delivered by the Pakistani Supreme Court on the 23rd of September, 2024. The case concerned the denial of election symbols to the political party established by Imran Khan, Pakistan Tehreek-e-Insaaf (PTI). The Pakistan Election Commission denied a symbol to the PTI based on its alleged failure to hold internal party elections. The denial of a party symbol is likely to cause voter confusion in a context where many voters are illiterate. The Electoral Commission also seated elected PTI representatives as ‘independents’ in the National Assembly and provincial legislatures. Furthermore, the Election Commission refused to allocate any seats reserved for women and non-Muslims to the PTI, which are proportionately allocated to parties based on their electoral performance. The PTI would have had 22 additional National Assembly members (with comparable additional numbers in provincial legislatures) had it been recognised as a political party.
A majority of the Pakistan Supreme Court upheld the challenge against the actions of the Election Commission and ordered the allocation of the disputed reserved seats to the PTI. It cited on Prof Khaitan’s work on the constitutional importance of political parties for a democracy to highlight that:
“Political parties play a crucial role in representative democracies, acting as intermediaries between the state and its citizens. They are uniquely positioned to shape and structure electoral choices, organize public opinion, and integrate diverse interests into coherent platforms, thereby making electoral decisions meaningful and ensuring the proper functioning of democracy.” [para 4]
The Court also used Professor Khaitan’s recent work characterising independent constitutional bodies like electoral commissions as ‘Guarantor Institutions’ to hold that:
“We find it important to emphasize that the Commission, as a constitutional “electoral management body”, is not merely an administrative entity but a fundamental “guarantor institution” of democratic processes, with a constitutional status akin to a “fourth branch of government”… As a central pillar of democratic electoral processes, the Commission, in its role as a guarantor institution and impartial steward, is tasked with ensuring the transparency and fairness of elections to maintain public trust in the electoral system.” [para 113]
The Supreme Court found that ‘the circumstances of the present case indicate that the Commission has failed to fulfill this role in the General Elections of 2024.’
This is a significant ruling in the context of democratic backsliding being witnessed around the world, often effected by the weaponisation of a guarantor institutions captured by the ruling party against the political opposition. Prof Khaitan’s work has been significant in the judgment’s appreciation of the democratic importance of political parties—especially in the opposition—and of the framing the role of electoral commissions as guarantors of constitutional democracy. His research has previously been cited in over a dozen cases by influential courts, including the Indian Supreme Court, the Canadian Supreme Court, the European Court of Human Rights, the Israeli Supreme Court, the Madras High Court, the High Court of Kerala, the Superior Court of Quebec, the Supreme Court of Nova Scotia, and in the Opinion of the Advocate General before the European Court of Justice.