The court declared Kuldeep Kumar of AAP as the winner, overturning the earlier result that had favoured a BJP candidate. The election was a litmus test for the INDIA Alliance, as its constituents, AAP and Congress, had joined forces for the first time against the BJP. A report by Mudit Mathur
In a major setback to the BJP, the Supreme Court, following substantiated charges of rigging in the counting of votes, declared Kuldeep Kumar of Aam Aadmi Party as the winner of the Chandigarh mayoral election, overturning the earlier result that favored a BJP candidate. The court’s decision came amid reports of horse trading with three AAP corporators defecting and joining the BJP.
The Bench was hearing a petition filed by Kuldeep Kumar against the Punjab and Haryana High Court’s refusal to stay the results of the Chandigarh mayoral election where the Presiding Officer Anil Masih, was seen on camera placing a mark on eight ballot papers during the polls.
Quashing the result of the election declared by presiding officer Anil Masih, a BJP leader, the apex court ordered his prosecution for ‘serious misdemeanour’ for making a false statement before the court that he had invalidated eight ballots because those had been defaced.
In a landmark judgement, the bench headed by Chief Justice of India D.Y. Chandrachud with justices J.B Pardiwala and Manoj Misra ruled that the election’s presiding officer, Anil Masih, had made a deliberate attempt to deface eight ballots that were cast in favour of Kumar so that the BJP’s Manoj Sonkar could be declared as the elected candidate.
Analysing the sequence of events, the court noted, “The Presiding Officer made a solemn statement that he had done so because he found that each of the eight ballots was defaced. It is evident that none of the ballots had been defaced. As a matter of fact, it is also material to note that after the votes are cast, the ballot is folded in a vertical manner to ensure that if the ink on the rubber stamp appears on the corresponding half of the ballot it will appear alongside the name of the candidate for whom the vote has been cast. The conduct of the Presiding Officer must be deprecated at two levels. Firstly, by his conduct, he has unlawfully altered the course of the Mayor’s election. Secondly, in making a solemn statement before this Court on 19 February 2024, the Presiding Officer has expressed a patent falsehood, despite a prior warning, for which he must be held accountable.”
Maninder Singh, senior counsel appearing on behalf of Manoj Sonkar, elected Mayor of the BJP, submitted that the relief sought by the appellant in the underlying writ petition before the High Court is for setting aside the result of the election and for the conduct of a fresh election. He argued that during the pendency of these proceedings, Sonkar had tendered his resignation and hence, a fresh election would have to be held in terms of the provisions of Section 38(3) of the Punjab Municipal Corporation Act 1976 which had become operational to Union Territory of Chandigarh after its extension in 1994.
Moulding the relief in favour of petitioner, Mayoral candidate Kuldeep Kumar by invoking its powers under Article 142 to do “complete justice” and protect the sanctity of electoral democracy, the court held, “We are of the considered view that it would be inappropriate to set aside the election process in its entirety when the only infirmity which has been found is at the stage when the counting of votes was recorded by the Presiding Officer. 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 Bench said it was evident that “while the petitioner is reflected to have polled 12 votes, the eight votes which are treated as invalid were wrongly treated to be so”, and “each of those…invalid votes were in fact validly cast…in favour of the petitioner”. It follows that Kuldeep had in fact received 20 votes, while Manoj Sonkar, the BJP candidate, had got 16. “We accordingly order and direct that the result of the election as declared by the presiding officer shall stand quashed and set aside,” the court said. “Allowing such a state of affairs…would be destructive of the most valued principles on which the entire edifice of democracy in our country depends,” it said.
Earlier, smelling the rat behind the move of BJP after the defection of three Aam Aadmi Party, the Supreme Court decided to check horse trading for saving democracy and free and fair elections. Chief Justice of India (CJI) DY Chandrachud, while expressing concern over the Chandigarh Mayor polls during the hearing, remarked, “We are deeply concerned about the horse-trading which is taking place. This whole business of horse trading which is going on is very disturbing. Let the entire video of counting of the votes be also produced tomorrow noon.”
On 19 February, the Bench recorded the statement of presiding officer Anil Masih, in the crowded courtroom which it noted as under:
“During the course of the hearing, the Returning Officer Mr Anil Masih is present before this Court. Responding to a query of the Court, Mr Masih stated that he had, besides signing the ballot papers, put his mark at eight ballot papers during the course of the counting of the votes. He states that he did so as he found that the ballot papers were defaced.”
The Bench held, “We are of the considered view that a fit and proper case is made out for invoking the jurisdiction of this Court under Section 340 of the Code of Criminal Procedure 1973 in respect of the conduct of Shri Anil Masih, the Presiding Officer. In paragraph 2 of the order dated 19 February 2024, we have recorded the statement which was made by the Presiding Officer when he appeared personally before this Court. As Presiding Officer, Anil Masih could not have been unmindful of the consequences of making a statement which, prima facie, appears to be false to his knowledge in the course of judicial proceedings.” The Court through its registry issued a show cause notice to Anil Masih returnable on 15 March 2024.
AAP supremo and Delhi chief minister Arvind Kejriwal thanked the court for saving democracy in these difficult times. Kejriwal congratulated Kumar and said that he hails from a poor family. “His victory became possible because of the Supreme Court. This is a victory of Indian democracy,” Kejriwal added.
Congress leader Rahul Gandhi attacked Prime Minister Narendra Modi after the Supreme Court judgement on his X handle: “In the BJP’s conspiracy to murder democracy, Masih is just a ‘pawn’; behind this is the ‘face’ of Modi.”
In the first hearing itself, the Supreme Court snubbed Masih and made it clear that it would not let democracy be “murdered” like this. Sensing that the court might set the election aside, BJP leaders started working on alternate plans to remain in power. Strategically, Sonkar resigned and then poached three AAP councillors a day before the hearing in order to have a sufficient strength of councillors in the event of a repoll. These three AAP councillors joined the BJP in the presence of BJP general secretary Vinod Tawde and former Chandigarh BJP chief Arun Sood.
The election of Mayor this year assumed significance in view of a newly forged alliance between the Congress, AAP and other opposition parties against the BJP for the first time clearing decks for potential realignment for the Lok Sabha elections. The parties are together in the opposition INDIA bloc, and have reached a seat-sharing deal in Delhi, even though they have decided to contest separately in Punjab.
The BJP had showcased the victory of its Mayor defeating INDIA Alliance candidate as a trendsetter event for the upcoming Lok Sabha polls. Over enthusiastic BJP president J.P. Nadda had said soon after Sonkar’s victory that it showed how the INDIA Bloc, of which both the Congress and AAP are part of, had failed the test. “That the INDIA Alliance fought their first electoral battle and still lost to the BJP shows that neither their arithmetic is working nor their chemistry,” Nadda said in a post on X congratulating Sonkar.
