The Supreme Court on Monday (February 19) proposed that the results of the controversial Chandigarh Mayor election will be declared on the basis of present ballot papers instead of ordering a fresh election.
The Court stated that it would direct that the votes already cast be counted by disregarding the marks which were made on them by the previous Presiding Officer Mr.Anil Masih. The Court stated that it will ask the Deputy Commissioner of the Chandigarh Administration to nominate an officer, who is not aligned with any of the political parties, to be the returning officer to count the ballots and declare the results. The Court stated that the entire counting process will be judicially overseen by a judicial officer nominated by the Punjab and Haryana High Court.
"The process shall be taken to the logical conclusion from the stage it stopped before the declaration of results...", Chief Justice of India DY Chandrachud said.
A bench comprising CJI, Justices JB Pardiwala and Manoj Misra directed that the ballot papers be produced before the Court tomorrow at 2 PM to ascertain if the votes can be deduced from them. The Registrar General of the High Court has been asked to nominate a judicial officer to bring the ballot papers to the Court.
Chandigarh administration proposes a fresh election
Solicitor General of India Tushar Mehta, appearing for the Chandigarh Administration, suggested that a fresh election be held under the supervision of a judicial officer.
However, Kuldeep Kumar, the Aam Aadmi Party candidate who lost the Mayor election, opposed the proposal. Senior Advocate Gurminder Singh, appearing for Kuldeep Kumar, submitted that votes can be counted on the basis of the present ballot papers. As per the regulations, the ballots are rendered invalid only on three conditions - (1) if votes are cast for more than two candidates, (2) if any mark is left identifying the voter, (3) if any mark is left on the ballot making it difficult to ascertain to whom the vote is cast.
Singh submitted that none of the conditions are present in the eight ballot papers, which were defaced by the Returning Officer Anil Masih.
"Mr.Masih was a member of the minority wing of the other party. Regardless of his misdemeanour, if we can take the election to its logical result..." Singh submitted.
The Court then stated that it would order the counting based on the present ballots. At this stage, the SG stated that some of the ballots were believed to be torn. It was at this point that the Court directed the production of the ballot papers tomorrow for its examination.
The Solicitor General requested that the matter be kept day after tomorrow, instead of tomorrow. However, the bench refused.
"We are deeply concerned about the horse-trading which is taking place..." CJI Chandrachud said. It may be noted that ahead of the Supreme Court hearing, the BJP candidate who was elected as Mayor, Manoj Sonkar, resigned. There are also reports that 3 AAP councillors joined the BJP.
Interaction with the Returning Officer
The bench also interacted with Anil Masih, the Presiding Officer of the Election, who was asked to be present today. On the previous day, after seeing the video of the elections which suggested that Masih had defaced some ballots, the bench had asked for his presence.
The bench was told that Masih was a nominated member of the Chandigarh Municipality and he belonged to the BJP.
CJI : Mr Masih, I am asking you questions. If I find that you are not giving me a truthful answer, you will be prosecuted. Every word that you say, you will be held liable for what you say. You are not in a political contest you are in a Court of Law, so please understand that. This is a serious matter. We have seen the video. What were you doing looking at the camera putting out crosses on the ballot papers? Why were you putting marks?
Masih : Sir, these councillors were making so much noise - camera! camera! camera! , that is why I am looking at what is the Camera they are talking about, that's why I was looking at the cameras. .....After the voting, I had to put signs on the ballot papers. The ballot papers which were defaced, I was just highlighting that it should not be mixed again that was the only reason.
CJI : It is very obvious from the video that you look at some of the ballot papers, depending upon the cross on the top or the bottom, you put your signature and put the ballot paper in the tray. Where the cross is at the other end of the ballot paper, you put an X mark on the ballot paper , it was very clear that you were putting X marks on certain ballot papers. Did you or did you not put X marks on certain ballot papers?
Masih : Yes. I marked on the defaced
CJI : On how many ballot papers was X mark put?
Masih : 8 ballot papers.
In his defence, Mr Masih explained that he had only put markings (and not an X mark per say) on those ballot papers to ensure that they do not get mixed with other papers. He also informed that right when he did these markings, Mr Manohar and Mrs Premlata belonging to the AAP party came and started snatching and destroying the ballot papers. He further added that the Chandigarh Police Marshalls had to intervene and preserve the ballot papers amidst the said chaos.
The CJI however, still pressed as to what necessitated the presiding officer to make such marking in the first place. The bench asked him under which provision of the law was he entitled to make such markings, as his post as a presiding officer only allowed him to put his signature under each ballot paper and nothing beyond.
CJI : Ballot paper ko deface aap kyu kar rahe the? App aise kyu kare? Aapko sign karna hai? (Why did you deface the ballot papers? You had to sign the papers only. Where is it provided in the rules that you can put other marks in the ballot papers)
Masih: Sir I was highlighting that they are defaced
CJI : So it is admitted that you have put your marks on the ballot
Masih : Jee (yes) Sir
Considering the above response of the Officer, the CJI expressed his utter disappointment towards the flouting of duties as a Returning Officer which as per him deserved prosecution.
"His answer is very clear, he has to be prosecuted. I think interfering with the electoral democracy by a Returning Officer is the gravest possible thing."
On the previous hearing, the Court came down heavily on the Presiding Officer who conducted the Chandigarh Mayor elections by orally saying, "It is obvious that he defaced the ballot papers."
The Court directed the Presiding Officer to remain personally present before the Court on the next date of hearing to explain his conduct.
"Is this the way he conducts the elections? This is a mockery of democracy. This is a murder of democracy. This man should be prosecuted," Chief Justice of India DY Chandrachud remarked after seeing the video of the controversial election, in which a BJP candidate was declared the winner after the votes of 8 councillors of the Congress-AAP alliance were declared invalid.
Issuing notice on Kumar's petition, the Court directed the ensuing meeting of the Chandigarh Municipal Corporation scheduled on February 7 shall stand deferred.
The Court ordered that the entire record of the Mayor election should be sequestered and be kept with the Punjab &Haryana High Court Registrar General and the ballots, and videography be preserved. The Deputy Commissioner of Chandigarh UT, who has possession of the records at present, should hand over them to the HC Registrar General by today 5 PM.
Background
The AAP councillor has approached the Supreme Court challenging the decision of the High Court to list his petition after three weeks without granting an immediate stay of the results.
He moved the High Court alleging vote tampering in the Chandigarh Mayor Elections, where Bharatiya Janata Party (BJP) candidate Manoj Sonkar emerged victorious on Tuesday. The BJP candidate secured 16 votes against the 12 votes received by Kuldeep Kumar, the candidate backed by Congress and AAP. The Presiding Officer rejected 8 votes as invalid.
He sought setting aside of the impugned election result "as the same is a result of complete fraud and forgery laid upon the democratic process" and prayed for holding of fresh elections in a free and fair manner under the supervision of a retired High Court Judge.
On January 31, the High Court denied his prayer to dissolve the functioning of the office until further orders. "Whether counting was proper, whether procedure was followed or not…These are all questions of facts," it reasoned.
Case Details : KULDEEP KUMAR vs. U.T. CHANDIGARH SLP(C) No. 002998 - / 2024
— Live Law (@LiveLawIndia) February 19, 2024#SupremeCourt to hear today the petition against Chandigarh Mayor Election in which a BJP candidate was declared the winner.
SC has directed the personal presence of the Presiding Officer today after observing that he had tampered with the ballot papers. pic.twitter.com/uNxuKPttrq
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