New Delhi: The Supreme Court Tuesday said it would not let electoral democracy be “thwarted”, which, it concluded, was done in the Chandigarh mayoral polls.
It made these observations while declaring AAP-Congress candidate Kuldeep Kumar as the elected candidate to the mayor’s post and setting aside the 30 January result that held BJP candidate Manoj Kumar Sonkar as the winner.
Led by Chief Justice D.Y. Chandrachud, the court did not order a fresh election for the post. Rather, it invoked its special powers under Article 142 of the Constitution to treat eight ballot papers, which the presiding officer had held as invalid, as valid, and recounted the votes to rule in favour of Kumar.
The court observed that since the only “infirmity” was found “at the stage of counting of votes by the presiding officer”, it would be “inappropriate to set aside the election process in entirety”.
In doing so, the court rejected Sonkar’s request to order a re-election, which was also one of the prayers made by Kuldeep Kumar in his petition. Sonkar tendered his resignation from the mayor’s post Sunday.
“Allowing the entire election process to be set aside would further compound the destruction of fundamental democratic principles, which has taken place as a consequence of the conduct of the presiding officer,” the court said.
It also pulled up presiding officer Anil Masih for “thwarting electoral democracy” by deliberately defacing eight ballot papers, all of which were cast in favour of Kumar, which consequently helped the opposing candidate win.
It deprecated Masih — a BJP councillor — on two grounds: putting marks on the ballot papers and for making an incorrect statement before the court.
On Monday, when Masih appeared before the court on the latter’s direction, he informed the court that he had marked the ballot papers because they were defaced.
However, upon physical verification Tuesday, the court found his statement to be false and said that his act “unlawfully altered the course of elections”.
Moreover, in making a “solemn statement before this court (on Monday)”, the bench said, he “expressed patent falsehood, for which he must be held accountable”. He acted beyond his remit, the court added.
As the court announced the results declared by Masih to be contrary to law, it also issued notice against him for contempt of court. He has been given three weeks to explain why action should not be taken against him.
“We are of the considered view that in such a case, this is court is duty-bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to do complete justice to ensure that the process of electoral democracy is not allowed to be thwarted by such subterfuge,” the court observed.
“Allowing such a state of affairs to take place would be destructive of the most valued principles on which the entire edifice of democracy in our country depends,” it added.
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What happened in court
The entire controversy related to the Chandigarh mayoral polls arose soon after Masih declared eight ballots to be invalid. As a result, Kumar was able to secure only 12 votes, as against 16 cast in favour of Sonkar.
In all, 36 votes were cast, of which 35 were of councillors and one by the Member of Parliament from the Union territory of Chandigarh.
Kumar had rushed to the Punjab and Haryana High Court, with a plea to set aside the elections. However, the high court refused to stay the election result and directed the matter to be listed after three weeks, leading to proceedings before the top court.
On 5 February, the top court issued notice on the matter and directed the presence of Masih in court. It had then viewed the video footage of the polls.
On Monday, the court quizzed Masih over his marking of ballot papers, as was alleged by Kumar. Masih denied the allegation and insisted that he had only marked those ballot papers that were defaced.
At this juncture, the top court ordered the registrar general of the Punjab and Haryana High Court to keep the entire record pertaining to the elections in his custody. The record included ballot papers as well as the video footage.
The box containing the invalid votes was unsealed before the top court Tuesday, when the latter took up the matter. The video footage was also played once on the open screens during the hearing.
On seeing the footage, the court recorded in its order: “During the course of the video footage, it emerged that Anil Masih had signed each of the ballot papers, as was required under the regulation.”
It further noted: “The footage appears to indicate the presiding authority also placed certain marks on some of the ballot papers.”
The court took into account the rules governing the election process and observed that the regulations stipulate that a member can vote for only one candidate, with each voting member placing a cross on the right-side of the ballot paper, opposite the name of the candidate for whom he/she wished to vote.
The court then discussed the three eventualities under which a ballot paper can be treated as invalid.
The first is where a member votes for more than one candidate, the second where a member places any mark on the paper by which he/she may be identified, and the third if the mark indicating the vote is placed in such a manner as to make it doubtful in whose favour the vote is being cast.
The ballot papers, perused by the court, as well as the lawyers appearing for Kumar and Sonkar, the bench said, “evidently” showed that they were duly cast in favour of the AAP-Congress candidate.
‘Presiding officer guilty of serious misdemeanour’
“Presiding officer has evidently put his own mark for the purpose of treating the ballot as invalid. In doing so, he has clearly acted beyond his remit as provided in the regulations,” the court said.
It also doubted the correctness of the presiding officer’s decision as the case of the eight ballot papers did not come under any of the three situations when a ballot can be treated as invalid.
The court said there was no dispute about the factual position, which is in whose favour the votes were cast.
Likewise, it added, there is no mark on the ballot which would indicate or identify the voter. Also, the ballot paper does not create any doubt for which candidate the vote has been cast.
Hence, even if the mark put by the presiding officer is taken into consideration, it does not create any doubt about the candidate in whose favour the ballots were cast.
“Evidently, the presiding officer is guilty of serious misdemeanour in his role and capacity as the presiding officer,” the court held, noting that the regulations require a councillor who is not a candidate for the polls to carry out his job with objectivity.
“It is evident the presiding officer has made a deliberate effort to deface ballots cast in favour of the petitioner so as to declare… respondent (Sonkar) as an elected candidate,” the court said.
The court was also displeased with Masih making a false statement in court, adding that it did not find even one of the eight ballot papers, held invalid by him, defaced. Rather, they were folded in a vertical manner.
Therefore, assuming they were defaced, the ink would have appeared on the corresponding side of the paper, in front of the candidate’s name, and not in the lower half of the paper, where Masih had deliberately put the mark, said the court.
(Edited by Nida Fatima Siddiqui)
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