The Bench also issued a show cause notice to the returning and presiding officer Anil Masih asking him why he should not be prosecuted for perjury for lying in court yesterday when he was asked why he had put marks on eight ballot papers.
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THE Supreme Court has quashed the election of Bharatiya Janata Party (BJP)'s Manoj Sonkar as the mayor of the Chandigarh Municipal Corporation
Today, a three-judge Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra held that returning and presiding officer Anil Masih had unlawfully altered the course of the mayoral elections by invalidating eight ballot papers cast in favour of the Aam Aadmi Party (AAP) candidate for mayorship, Kuldeep Kumar.
The Bench chose not to quash the entire election process. It opined that doing so would be inappropriate since the only infirmity was found in the counting process.
"Setting aside the entire election process will compound the destruction of the democratic principles which happened due to the conduct of the presiding officer," the Bench observed.
It thus invoked its inherent power under Article 142 of the Constitution to treat eight ballot papers wrongly invalidated by Masih as valid and declared AAP's candidate the duly elected mayor of the municipal corporation.
With eight ballot papers having been considered valid by the Supreme Court, APP candidate Kumar secured 20 votes as against the BJP candidate, who got only 16 votes.
The Bench also issued a show cause notice to Masih asking him why he should not be prosecuted for perjury for lying in court yesterday when he was asked why he had put marks on the eight ballot papers.
Yesterday, Masih had admitted that he did put marks on eight ballot papers but contended that he did so because those ballot papers had already been defaced.
Today, upon physically verifying those eight ballot papers, the Bench found they were not defaced at all, save by Masih.
Senior advocate Mukul Rohatgi, who appeared for Masih, submitted that Masih had found dots on ballot papers and some of the ballot papers had been folded which, in Masih's assessment, was wrong and that was the reason Masih had put marks on them to identify them for disqualification.
Senior advocate Maninder Singh, for the BJP candidate who was declared the winner, argued that he had already resigned and that the court should order fresh polls.
Senior advocates Abhishek Manu Singhvi and Gurminder Singh, for the petitioners, urged the court to treat the eight invalid ballots as valid.
Yesterday, the Bench had directed the registrar general of the Punjab and Haryana High Court to produce the entire record of the Chandigarh mayor elections before it at 2 p.m. today.
Earlier this month, the Supreme Court came down heavily on the returning officer Masih for defacing the ballot papers to benefit the BJP candidate.
"This is a mockery of democracy. We are appalled by what has happened. We will not allow democracy to be murdered like this," the CJI had said after watching a video allegedly showing Masih defacing the ballot papers.
The Bench had directed that the entire record of the Chandigarh mayor elections be sequestered under the custody of the Punjab and Haryana High Court's registrar general. It had also directed that a meeting of the municipal corporation scheduled to be held on February 7 be deferred till further orders.
The Bench was hearing a petition filed by the AAP candidate for mayorship, Kuldeep Kumar, against non-consideration of the interim relief sought from the Punjab and Haryana High Court.
Kumar has alleged that the election process was marred by fraud; most notably through ballot tampering by the presiding officer, Anil Masih, during the process of counting votes.
"In a live television broadcast of the ballot counting, the presiding officer can be seen marking a few ballot papers with a pen. By making these markings and tampering with the ballots, Respondent No. 7 was able to declare eight ballots as invalid.
"As a result, the petitioner was shown to have received 12 votes, whereas the opposing candidate, Respondent No. 8, was declared as the returned candidate, having received 16 votes," the petition states.
Kumar had petitioned the Punjab and Haryana High Court challenging the electoral process. On January 31, 2024, the high court issued a notice on the petition and directed to list the matter after three weeks, but did not grant any interim relief, even though Kumar had urged the court to provide interim relief in his petition.
It was against this refusal of the interim Order that Kumar knocked on the doors of the Supreme Court. In the high court, Kumar had referred to a widely reported video where the presiding officer can be seen tampering with or interpolating the ballot papers, which was fortuitously caught on camera.
"This was a grave and shocking incident. However, the high court merely issued notice to the respondents but erred in passing the impugned Order without granting any interim relief to preserve the petitioner's rights; including inter alia ordering a stay on giving effect to the outcome of 'elections' for the post of mayor of the Municipal Corporation, Chandigarh, or directing the preservation of electoral records such as ballot papers so that a proper and fair inquiry could also be conducted.
"This is not a case of an election dispute, but a case of abuse of public office, which destroys the very essence of faith reposed in the officer and is a constitutional wrong and breach of the doctrine of public trust. The case was so egregious that the high court ought to have passed interim Orders," Kumar told the Supreme Court through his petition.
Kumar contended that by not granting any interim relief, the high court had allowed the fraud to continue.
"Particularly, the high court ought to have stayed the results of the election and ordered that the ballot papers and other electoral paraphernalia be taken into custody so as to preserve them for the purposes of determining the legality of the elections.
"Allowing Respondent No. 8 to discharge duties and functions as mayor effectively validates a corrupt practice in gross violation of the paramount principle of democracy, i.e., free and fair elections, and thereby erodes public trust," the petition states.
On January 10, a notification was issued for the election of mayor, senior deputy mayor and deputy mayor, by the deputy commissioner, Chandigarh. As per the notification, the election was to be convened on January 18 under the presiding authority, Anil Masih.
The petitioner had earlier approached the high court seeking direction to the deputy commissioner-cum-prescribed authority, Chandigarh, to ensure free and fair elections to the posts of mayor, senior deputy mayor, and deputy mayor and the appointment of a court commissioner to supervise the process.
On January 17, the high court disposed of the writ petition, recording the submission of the respondents that they would be conducting videography of the entire voting or election process and that the Chandigarh police would "leave no stone unturned to ensure free and fair elections in the Municipal Corporation, Chandigarh".
However, the elections were not held as scheduled on January 18. The petitioner approached the high court contending that despite the undertaking given by the respondents, elections were not held.
Instead, Respondent Nos. 1 and 2 had published a letter postponing the date of elections to February 6 on the grounds of the presiding officer's ill health and the "prevailing law and order situation in the Union territory".
The high court found that postponing elections was unjustified, absurd and frivolous. Thus, it directed that the elections be held on January 30.
On January 30, elections were held. The petitioner asserted that the elections were conducted fraudulently by the presiding officer.
The presiding officer, in blatant contravention of the rules and conventions, barred nominees of political parties from participating in the counting process; tampered with the ballots and arbitrarily declared eight votes as invalid, the petitioner alleges.
"By virtue of this illegal electoral process, Respondent No. 8 (BJP's Manoj Sonkar) was declared as the winner," the petition stated.
Click here to read the Order