Supreme Court: In an appeal against the interim order passed by Division Bench of Punjab and Haryana High Court on 31-01-2024 declining to stay the election results or granting any interim relief and listing the hearing in Chandigarh Mayor Polls matter after 3 weeks, Bench of Dr DY Chandrachud*, CJI, JB Pardiwala and Manoj Misra, JJ. set aside the Mayor election results and declared the appellant Kuldeep Kumar to be the winner for Mayor post since the 8 wrongly invalidated votes were cast in his favour, giving him the majority over BJP candidate.
The matter pertains to a petition alleging electoral malpractices by the presiding officer who conducted the election to the post of Chandigarh Municipal Corporation Mayor. Since the High Court listed the matter after 3 weeks, the appellant approached the Court through instant appeal raising serious allegations on sanctity of the said elections.
The Court hinted towards the various provisions including Section 38 of Punjab Municipal Corporation Act 1976 for election of Mayor of Mayor of the MC Chandigarh every year, Section 60(a) for Divisional Commissioner nominating a councilor to preside over the meeting, Regulation 6(1) of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996 for prescribed authority to convene meeting for Mayor election, and Chandigarh Deputy Commissioner being designated as presiding authority for the said purpose as per notification dated 4-10-1994.
The Court took note of nomination of Anil Masih as the presiding authority for the meeting for conducting elections for Mayor, Senior Deputy Mayor and Deputy Mayor of the MC Chandigarh, wherein, elected Councillors desirous of contesting the election were called upon to file their nominations for the posts. Meanwhile, a writ petition under Article 226 of the Constitution was instituted by the appellant seeking directions for the Deputy Commissioner to ensure free and fair elections which were scheduled to be held on 18-01-2024 and appointment of a commissioner to supervise election process.
Elections were not conducted as per scheduled date but postponed to be held on 6-02-2024 and another round of litigation started before the High Court. It was alleged that the election could not take place on prior schedule since Anil Masih had taken leave of absence due to ill health and purported ‘law and order’ situation in Chandigarh. The Court found the postponement of elections by 18 days unreasonable in the absence of any valid ground and directed the conduct of elections on 30-01-2024.
On election day, 2 candidates were in fray for the post of Mayor, one being the appellant Kuldeep Kumar fielded by an alliance between the Aam Aadmi Party and the Indian National Congress, and Manoj Kumar Sonkar being a candidate set up by Bharatiya Janata Party. Further, 35 councilors were eligible to vote at the Mayor election and the Member of Parliament from UT Chandigarh was also eligible to case a vote making it a total of 36 eligible voters. Based on the result sheet, 12 votes were in appellant’s favor, 16 votes in BJP candidate’s favour and 8 votes were treated as invalid. Thus, Anil Masih declared the poll results in BJP candidate’s favour. The entire election process was video recorded as per directions from the High Court.
The appellant approached the High Court alleging electoral malpractices by Anil Masih while counting the votes, but the High Court vide impugned order refused to stay the result and directed the petition to be posted after 3 weeks, when the instant matter reached the Court.
The video recording was played in open Court on 5-02-2024 when the Court directed the Chandigarh Mayor election record to be sequestered. On 19-02-2024, Anil Masih had stated that he had, besides signing the ballot papers, put his mark at 8 ballot papers during the course of the counting of the votes after finding the ballot papers to be defaced. The Court directed production of election records to be produced the next day including ballot papers, video footage, and all material in the custody of Presiding Officer.
The Court highlighted Clauses (9) to (13) of Regulation 6 to have a material bearing upon the instant dispute, supposedly serving as a yardstick to test the actions of the Presiding Officer Anil Masih. The Court expressed that “From the record, it emerges that Shri Anil Masih, the Presiding Officer had signed each of the ballot papers. However, the video footage appears to indicate that he had also placed certain marks on some of the ballot papers.” The same was corroborated by him on 19-02-2024, stating that he did so when he found the ballot papers to be defaced and sought to highlight them. It was alleged that the votes were treated as invalid only due to marks put by Anil Masih, and a deliberate effort was made by him to treat 8 votes cast in appellant’s favour as invalid to declare BJP candidate as the elected candidate. It was alleged that the electoral process was vitiated by presiding officer Anil Masih’s misconduct.
During pendency of proceedings, the said BJP candidate for Mayorship tendered his resignation. The Court focused upon the 8 invalidated ballot papers and explained that all the ballot papers contained name of appellant in the upper half and that of BJP candidate in the lower half, and below the two was signature of presiding officer. It expressed that “It is evident from the physical inspection of the eight ballots which were treated to be invalid that in each of those cases, the vote was cast by the member in favour of the appellant. The Presiding Officer has placed a line in ink by way of a mark at the bottom half of each of the ballots which have been treated to be invalid. During the course of the hearing yesterday, the Presiding Officer informed this Court that he did so because he found that the ballots had been defaced. Before recording the statement of the Presiding Officer in the above terms, we had placed him on notice of the serious consequences which are liable to ensue if he was found to have made a statement before this Court which was incorrect.”
The Court said that the presiding officer put his own mark to create a ground for treating the ballot to be invalidly cast, and clearly acted beyond the terms of statutory regulations. It further remarked that “Even if the mark which was placed by the Presiding Officer is taken into consideration, that mark does not create any doubt about the candidate in favour of whom the vote was cast. The vote was cast by placing a rubber stamp on the upper half of the ballot and hence the ink mark which was placed on the bottom half by the Presiding Officer would be of no consequence. The ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast.”
Thus, the Court found Anil Masih guilty of a serious misdemeanor for actions done during his capacity as Presiding Officer. It explained that the procedure requires the presiding officer not be a candidate at the election, just to ensure objectivity.
The Court set aside the MC Chandigarh Mayor election results as concluded by Anil Masih. The Court further viewed it inappropriate to set aside the election process in its entirety while the only infirmity was at the stage of counting votes as recorded by the presiding officer and said that it would “further compound the destruction of fundamental democratic principles”.
The Court went on to comment that “Elections at the local participatory level act as a microcosm of the larger democratic structure in the country. Local governments, such as municipal corporations, engage with issues that affect citizens’ daily lives and act as a primary point of contact with representative democracy. The process of citizens electing councillors, who in turn, elect the Mayor, serves as a channel for ordinary citizens to ventilate their grievances through their representatives — both directly and indirectly elected. Ensuring a free and fair electoral process throughout this process, therefore, is imperative to maintain the legitimacy of and trust in representative democracy.”
The Court said that it was duty bound in terms of jurisdiction under Article 142 of Constitution to do complete justice to ensure that ‘process of electoral democracy is not allowed to be thwarted by such subterfuges’. It added that “The brazen nature of the malpractice, visible on camera, makes the situation all the more extraordinary, justifying the invocation of the power of this Court under Article 142.”
Adding 8 votes in appellant’s vote count, who already held 12 votes, made the tally for 20 votes, while the BJP candidate held 16 votes. Thus, the Court quashed and set aside the election result declared by the presiding officer and declared the appellant to be the validly elected candidate for election as Mayor of the MC Chandigarh.
The Court further found it to be a fit and proper case for invoking its jurisdiction under Section 340 of Criminal Procedure Code, 1973 regarding contempt of lawful authority. While concluding, the Court ‘echoed the observations by Justice VR Krishna Iyer’ in Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
The Court concluded with the words “In order to maintain the purity of the electoral process, the “little cross” on the “little bit of paper” must be made only by the metaphorical “little man” walking into the “little booth” and no one else.”
[Kuldeep Kumar v. U.T. Chandigarh, 2024 SCC OnLine SC 175, decided on 20-02-2024]
Judgment authored by: Dr Justice DY Chandrachud
Advocates who appeared in this case :
For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi, Senior Advocate Gurminder Singh, Advocate Shadan Farasat, Advocate on Record Talha Abdul Rahman, Advocate Amit Bhandari, Advocate Siddharth Seem, Advocate Abhishek Babbar, Advocate Harshit Anand, Advocate M. Shaz Khan, Advocate Adnan Yousuf, Advocate Ramanpreet Bara, Advocate Ferry Sofat, Advocate R.P.S. Bara, Advocate Karamanbir Singh
For Respondents: Solicitor General Tushar Mehta, Senior Advocate Maninder Singh, Advocate Bansuri Swaraj, Advocate on Record Siddhesh Shirish Kotwal, Advocate Prateek Gupta, Advocate Varun Chugh, Advocate Ana Upadhyay, Advocate Manya Hasija, Advocate Tejasvi Gupta, Advocate Pawan Upadhyay, Advocate T. Illayarasu, Advocate Ashita Chawla, Advocate Ajay Sabharwal, Advocate Rangasaran Mohan, Advocate Amarpal Singh Dua, Senior Advocate Mukul Rohatgi, Senior Advocate Adundhamauli Prasad, Advocate Raghunatha Sethupathy B., Advocate Mutu Thangadurai, Advocate Misha Rohatgi
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