The Bench also observed that the results of the elections could be declared by counting the present ballot papers, disregarding the marks made by the returning officer, instead of conducting fresh elections.
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ON Monday, the Supreme Court warned returning officer Anil Masih of prosecution for allegedly defacing ballot papers in the elections for the mayorship of the Chandigarh Municipal Corporation which were held under his watch.
Masih was present before a Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra.
While being questioned by the Bench over his conduct during the elections, Masih admitted that he did put marks on eight ballot papers but he did so because those ballot papers had already been defaced.
An unimpressed Bench warned Masih of prosecution for interfering with the election process. The Bench was of the view that as a returning officer, he could only put his signatures on the ballot papers and not any marks.
The Bench also 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. tomorrow. The Bench refused to adjourn the hearing to Wednesday despite a fervent request made by the Solicitor General of India Tushar Mehta.
“We know what’s happening, the horse-trading is very disturbing,” said the CJI while refusing to postpone the list of the matter.
Yesterday, three Aam Aadmi Party (AAP) councilors of the Chandigarh Municipal Corporation joined the Bharatiya Janata Party.
The Bench also observed that the results of the elections could be declared by counting the present ballot papers, disregarding the marks made by the returning officer, instead of conducting fresh elections. This observation is yet to culminate in the final Order of the court on the matter.
The Solicitor General of India Tushar Mehta, for the Union territory of Chandigarh, said that the petition had become infructuous since the mayor so elected had resigned and that the petitioner himself had asked for de novo elections.
However, senior advocate Gurminder Singh, for the petitioner, argued that rather than de novo elections, the present ballots could be counted, disregarding the marked ballots.
What is the case about?
Earlier this month, the Supreme Court had come 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.
Background
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.
