Supreme Court Declares AAP Councillor As Chandigarh Mayor, Finds That Presiding Officer Deliberately Defaced Ballots

In a significant development, the Supreme Court on Tuesday (February 20) declared Aam Aadmi Party Councillor Kuldeep Kumar as the Mayor of the Chandigarh Municipal Corporation.

The Court declared the results announced by the Presiding Officer Anil Masih on January 30, 2024, whereby the BJP candidate Manoj Kumar Sonkar was declared as the winner, to be illegal and set it aside. The Court found that the Presiding Officer had deliberately defaced 8 ballots which were cast in favour of Kuldeep Kumar so as to make them invalid. The Court invoked its powers under Article 142 of the Constitution to pass the directions to do "complete justice."

The Court physically examined the ballot papers and found that they were not defaced. Adding these 8 votes to the results, the Court declared Kuldeep Kumar as the winner.

The bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra also initiated criminal proceedings under Section 340 of the CrPC against Anil Masih for making false statements before the Court.

Yesterday, the Court had ordered the production of the ballot papers and the records, which were taken into the custody of the Punjab and Haryana High Court as per the previous order issued on February 5.

The point of controversy related to 8 ballots, which the Presiding Officer (a nominated councillor who belonged to the BJP) had declared to be invalid. Out of the total 36 votes, only 28 votes were counted. The AAP councillor secured 12 votes and the BJP candidate got 16 votes.

Today, after a physical inspection of the ballots, the Court found that the 8 "inavlid" ballots had votes in favour of the AAP councillor. The Court also found that the Presiding Officer had put a one-line mark at the end of these eight ballots. In his statement before the Court yesterday, Masih claimed that he had put these marks since these ballots were already defaced and so he wanted to segregate them. However, the Court today found Masih's statement to be false, as the ballots were not defaced.

The Court noted that as per the Regulation 6 of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996, a ballot can be invalid only under three circumstances - (1) more than one vote is cast, (2) there is any mark identifying the voter, (3) the marks are placed in an ambiguous manner making it doubtful to whom the vote is cast.

The Court held that none of these circumstances is present in the 8 ballots. Hence, the ballots are to be treated as valid, ignoring the marking made by the Presiding Officer.

"The ink marks placed by the Presiding Officer at the end of the ballots have no consequence," the Court observed.

Presiding Officer guilty of misdemeanour 

The Court observed that "the Presiding Officer has made a deliberate attempt to deface 8 ballots which were cast in favour of the petitioner so that the 8th respondent (BJP candidate) will be declared as the elected candidate."

"Yesterday, the Presiding Officer made a solemn statement before this Court that he had done so as the 8 ballots were defaced. It is evident that none of the ballots are defaced," the Court observed further.

"The conduct of the Presiding Officer has to be deprecated at two levels. Firstly, he has unlawfully altered the course of Mayoral election. Secondly, in making a solemn statement before this Court on 19 Feb, the Presiding Officer expressed falsehood for which he must be held accountable," the Court stated.

Should fresh elections be held?

Manoj Sonkar, the BJP candidate who was declared the Mayor on January 30, resigned ahead of the Supreme Court hearing. Therefore, the respondents raised an argument that a fresh election has to be held to fill up the vacancy of the Mayor post.

However, the Court ruled out a fresh election, stating that it is inappropriate to set aside the entire election because the only infirmity is the misconduct of the Presiding Officer during the counting process.

"We are of the view that setting aside the entire election process is inappropriate as the only infirmity is found in the counting process. Setting aside of the entire election process will compound the destruction of the democratic principles which happened due to the conduct of the Presiding Officer," the Court observed.

The Court stated that it cannot let democratic processes to be set at nought by "subterfuges". Yesterday, CJI DY Chandrachud had expressed concerns about the "horse-trading which is taking place". Reportedly, certain AAP councillors switched to the BJP ahead of the court hearing.

During the hearing, the video footage of the voting process was also played in the Court. The video footage showed Masih making markings on certain ballot papers.

Senior Advocates Dr Abhishek Manu Singhvi and Gurminder Singh, Advocates RPS Bara, Karmanbir Singh Kharba aappeared on behalf of petitioner Kuldeep Kumar. Senior Advocate Mukul Rohatgi appeared for Anil Masih. Senior Advocate Maninder Singh appeared for Manoj Sonkar, the BJP Mayoral candidate. Solicitor General of India Tushar Mehta appeared for the Union Territory of Chandigarh.

Kuldeep Kumar's lawyers pressed for a re-counting, saying that re-election would give the opposite party the benefit of councillors who switched sides. Senior Advocate Gurminder Singh pointed out that the one-line put by the Presiding Officer in the ballots won't make them invalid.

Dr.Singhvi pressed for a strong action against Masih. "The person (Masih) had the gall to do it on video, keep quiet, come to court and think that he can get away. He was misleading all of us," he said. 

In defence of Masih, Rohatgi submitted that he had a bona fide belief that 8 ballots were defaced and hence the markings were made to identify them.

"He may be right or wrong. That is his assessment. He is not a thief. And the Court also asked why he was looking at the camera? There was a commotion and he was checking if the camera was working. It is not as if it was a guilty man looking at the camera," Rohatgi submitted.

The AAP councillor approached the Supreme Court challenging the decision of the Punjab and Haryana High Court to list his petition after three weeks without granting an immediate stay of the results.

On January 31, the High Court denied his prayer to dissolve the functioning of the office until further orders. "Whether counting was proper, whether procedure was followed or not…These are all questions of facts," it reasoned.

Case Details : KULDEEP KUMAR vs. U.T. CHANDIGARH SLP(C) No. 002998 - / 2024

Citation: 2024 LiveLaw (SC) 146

Click Here To Read/Download Judgment