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The Supreme Court on Tuesday overturned the results of Chandigarh mayoral polls and declared the Aam Aadmi Party candidate (AAP) the winner, in a landmark decision which doused an unprecedented controversy that erupted last month after the returning officer was caught on camera brazenly defacing ballots.
A three-judge bench of the top court held the earlier election results to be “patently illegal” and ordered criminal proceedings against the returning officer, former Bharatiya Janata Party (BJP) office-bearer Anil Masih, for deliberately defacing eight ballots and lying before the court.
“We order and direct that the election result, as declared by the presiding officer Anil Masih, will stand set aside and the petitioner (Kuldeep Kumar) will be declared elected as the mayor of the Chandigarh municipal corporation,” said the bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.
“We are of the view that the court must step in such exceptional circumstances to ensure that the basic democratic mandate is ensured,” the bench, also comprising justices JB Pardiwala and Manoj Misra, held.
The decision handed the beleaguered Indian National Developmental Inclusive Alliance (INDIA) a rare victory that was hailed by AAP and Congress leaders. The court’s verdict also gains significance as it comes just months ahead of the general elections.
“The message of this poll is that if INDIA bloc parties remain united and work strategically, they can defeat the BJP,” Delhi chief minister Arvind Kejriwal said later.
The BJP would have held an advantage if the court had ordered fresh polls as its numbers swelled by three following the defection of three AAP councillors two days ago. To be sure, the defection is likely to have no impact on the House given that a no-confidence motion needs two-thirds support to be introduced.
The drama began on January 30, when the BJP won the poll after the chair scrapped eight Opposition votes, sparking allegations of vote tampering to steal the mandate. In the House of 35, the INDIA bloc candidate Kuldeep Kumar was tipped to win after the AAP, with 13 members, and the Congress, with seven, joined hands and supported a joint nominee. But he was defeated by the BJP’s Manoj Sonkar after Masih declared eight votes invalid. He later said that ballot papers had some pen marks and were therefore considered defaced. Visuals from the chamber showed Masih making the marks on the ballot papers himself.
But the apex court rejected this reasoning on Tuesday as it examined the ballots and the videotaped proceedings.
“In the present case, the presiding officer has made deliberate attempt to deface the eight ballots in favour of the petitioner to declare the respondent 8 [Sonkar] as the winning candidate…It is evident, the presiding officer is guilty of serious misdemeanour in doing what he did in his capacity as presiding officer. He has clearly acted beyond the terms of his requirement under the statutory regulations,” the bench said.
Without directing fresh elections, the bench physically inspected the ballots and found that barring the marks made by Masih, the votes were cast in favour of Kumar.
“The only infirmity found is at the stage when counting of votes is recorded…Even if the mark of the presiding officer is taken into consideration, that mark does not create doubt in favour of the candidate for whom votes were cast. The ink mark at the bottom half of the ballot would be of no consequence,” the court said.
Solicitor general Tushar Mehta, who was representing Chandigarh administration, and senior advocate Maninder Singh, who was appearing for Sonkar, suggested fresh elections in view of the controversy surrounding the votes. Section 38(3) of the Punjab Municipal Corporation Act was cited in this regard as the resignation of Sonkar two days ago created a vacancy that required fresh elections.
But the court rejected this suggestion, and instead added the eight votes to the tally of 12 secured by Kumar.
“In such a case, this court is duty bound in terms of its duty under Article 142 to do complete justice to ensure the process of electoral democracy is not derailed due to such subterfuge…We come to the conclusion that the result declared by presiding officer is patently illegal and is set aside.”
The court also tore into Masih, who formerly headed the local BJP unit’s minority wing and was dropped on February 11. “A fit and proper case is made out under Section 340 of Code of Criminal Procedure (CrPC) in respect of the conduct of the presiding officer,” it said.
On Monday, Masih admitted to making a mark on the ballots but said he had done it to distinguish the already defaced votes. The court warned him at the time that any false statement will invite consequences.
On Tuesday, the bench caught his lie after it played the video of the proceedings in court. “Yesterday, you told us that you put the mark on the ballots that were defaced. Where is the ballot defaced, you tell us?” The video also showed that till the declaration of results, there was no commotion in the House, contrary to what Masih had claimed.
“The conduct of the presiding officer has to be deprecated at two levels,” said the bench, adding, “By his conduct, he has unlawfully altered the course of the mayoral election. And in making a solemn statement on Monday, the presiding officer has expressed patent falsehood for which he needs to be held accountable.”
The registrar (judicial) of the top court was directed to issue notice to him to show cause why action should not be initiated against him for making false statement to the court which is punishable under Section 209 of the Indian Penal Code (IPC). The maximum punishment is two years in jail. The court gave Masih time to respond to the notice and posted the matter against him after three weeks.
Rohatgi, who appeared for Masih, sought to defend his client by saying that making a mark on the ballot could be an error of judgment. “By virtue of putting a tick or a dot, he has identified the ballots to be disqualified. He may be right or wrong in his assessment. But to say that he acted as a thief is wrong,” Rohatgi said. The
The court had, in the past, found Masih’’s conduct suspect as he looked at the overhead surveillance camera every time he made a mark on the ballot. But Rohatgi sought to explain it. “He was looking at the camera to see if it was working. I can’t be furtive if I am sitting with 50 people in the room.”
For Kumar, senior advocate Abhishek Singhvi along with Punjab advocate general Gurminder Singh pointed out that the returning officer should not be permitted to get away after misleading the court. “He has exacerbated and compounded the felony by repeating his conduct before the Court. It amounts to contempt. This person has the gall to do it on video and come to Court and think he can get away,” Singhvi said.
Kejriwal said it was the first victory of the INDIA bloc, and the BJP can be defeated with unity, strategy.
“The Supreme Court has given a historic verdict in Chandigarh mayoral polls. In the mayoral polls the INDIA alliance had got 20 votes and the BJP had 16 votes. 8 votes of the INDIA alliance were declared invalid and the INDIA alliance candidate Kuldeep Kumar was declared loser. BJP candidate was declared winner. When the matter reached the Supreme Court, it heard the matter very quickly, called for the ballot papers, saw them and declared the result. I believe this has happened for the first time in the history of India. I want to thank Supreme Court for saving democracy. At a time when democracy is being crushed, all institutions are being crushed, in such a situation this verdict of the SC is very important,” said Kejriwal at a press conference in Delhi.
Congress chief Mallikarjun Kharge and party leader Rahul Gandhi made a scathing attack on the BJP.
Rahul Gandhi said Masih was just a pawn in the conspiracy. “In the BJP’s conspiracy to murder democracy Masih is just a pawn, behind it is ‘face’ of Modi,” he said in a post on X, formerly Twitter.
Kharge said all Indians must fight the “onslaught on the Constitution” collectively.
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