Supreme Court declares AAP’s Kuldeep Kumar as the Mayor of Chandigarh; sets aside old election results

The Bench led by the Chief Justice held the Presiding Officer accountable for ballot tampering and directed a show cause notice to be issued

Today, a Division Bench of the Supreme Court led by Chief Justice D.Y. Chandrachud declared Kuldeep Kumar, the Aam Aadmi Party candidate as the winner of the Chandigarh mayoral election. 

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. Masih is the general secretary of the Bharatiya Janata Party (BJP)’s Minority Morcha and was in attendance during the court proceedings. 

Masih had set aside these eight votes as invalid and Manoj Sonkar belonging to the BJP, was declared the winner on 30 January 2024. Sonkar resigned from the Office on 18 February 2024. 

Yesterday, the Bench had ordered for the ballot papers to be presented to them for examination by a judicial officer appointed by the High Court. 

Today, the Bench quashed the results declared by Masih and held that he deliberately tampered with the process of free and fair elections and lied to the Court. “He must be held accountable,” the Chief said and ordered a show cause notice to be issued against him. The Bench also reasoned that a fresh election was not necessary as the votes that Masih had invalidated were actually valid. 

The ballot examination

The day’s proceedings commenced with the Bench, comprising the Chief and Justices J.B. Pardiwala and Manoj Misra, examining the eight ballot papers in question. The High Court-appointed judicial officer, presented the votes to the Bench. After a close examination of the eight votes individually, the judges concluded that all eight votes were cast in favour of Kuldeep Kumar and that they were all marked by Masih. The ballot papers were also circulated amongst members of the Bar for scrutiny. 

Senior Advocates A.M. Singhvi and Gurminder Singh (also the Advocate General of Punjab) appeared for Kuldeep Kumar. Senior Advocate Mukul Rohatgi represented Masih and Senior Advocate Maninder Singh represented Manoj Sonkar. Solicitor General Tushar Mehta appeared on behalf of the Union Territory of Chandigarh.

Rohatgi contended that the mark was placed on certain ballots as they were assessed to be defaced or invalid votes. “In one of them, there is a small dot, some are folded on the top…by virtue of that tick, he has identified for disqualification,” he said. 

Singhvi and Gurminder Singh countered that none of the eight votes were invalid. Singh reiterated his argument from yesterday that they could be invalid only if (i) there was a mark which clearly indicates who cast the vote; (ii) the vote was cast in such a way that it was difficult to decipher who it was cast in favour of and; (iii) it was cast for two candidates. 

However, this was not the case here. All votes very clearly indicated that they were cast in favour of Kuldeep Kumar and that they were folded horizontally so that if the ink split, it would still be clear which candidate the vote was meant for.

“The man should have the humility to not argue…” Singhvi remarked when Rohatgi insisted that Masih was looking at the cameras only because there was a commotion. 

Watching the video

Yesterday, Mehta had requested that the full video of the alleged tampering be played in Court. Today, the video was played on all screens of Courtroom 1. “A little bit of entertainment is good for everybody,” the Chief remarked in passing, right before the video was played. 

Then the viewing began. All eyes were on the screen. The petitioner lawyer’s excitement was hard to miss, they stood by the podium smiling. The respondent lawyers sat on their side. They asked for access to the full video so they could draw the attention of the Court to the time stamps relevant to them. 

After a long viewing session, Rohatgi began to explain that Masih marked the ballots that he thought to be invalid. 

Justice Pardiwala interrupted. He pointed out that yesterday, Masih had stated that he marked the ballots because, by the time he could count them, they were snatched and defaced. However, in the video, it was clear that the commotion took place after polling was complete and the results were declared. 

Rohatgi contended that Masih’s case was that he marked the ballots which he thought were invalid. “In his assessment, those ballot papers were defaced…” Rohatgi said. “No, no, no, Sorry” Justice Pardiwala responded. Rohatgi however, went on to defend Masih. “He may be right or wrong but to call him a thief is not correct,” he asserted. 

To re-elect or not to re-elect

The Bench then deliberated the course of action. Maninder Singh submitted that per the petitioner’s prayer before the High Court, these elections must be set aside and fresh elections must be conducted. He reminded the Court that his client Manoj Sonkar—the BJP candidate who was declared as Mayor—had resigned and the post was open. He also contended that this was the rule enshrined in the Punjab Municipal Corporation Act, 1976. 

Singhvi however, interjected to point out that the election had to be conducted afresh only if the votes were invalid but in this case, the votes were not invalid. 

Ultimately, the Bench held that a re-election was not necessary. They observed that setting aside the entire mayoral election would be inappropriate “when the only infirmity which has been found, is at the stage when the counting of votes was reported by the Presiding Officer.” The Bench further noted that if the election was set aside altogether, it would “compound the destruction of fundamental, democratic principles which has taken place as a consequence of the conduct of the Presiding Officer.” 

Enforcing its discretionary powers under Article 142 to do “complete justice”, the Court declared that the eight votes that were set aside, “were in fact, validly cast in favour of the petitioner.” 

The Bench reasoned that they had to “step in” to ensure that the “basic mandate of electoral democracy is preserved at local participatory level”. Therefore, they quashed and set aside the election results announced by Masih and declared the petitioner, Kuldeep Kumar to be the “validly elected candidate” of the Chandigarh mayoral election.

“The Presiding Officer has acted beyond the terms of his remit”

Lastly, the Bench held that Masih had deliberately marked the eight votes to ensure that Manoj Sonkar could win the mayoral election. This action, they held, was beyond his scope under statutory regulations. 

“It is evident that the Presiding Officer is guilty of a misdemeanour in doing what he did in his role and capacity as Presiding Officer,” the Chief stated while dictating the Order for the day. 

Further, the Bench noted that Masih’s conduct had to be “deprecated” at two levels. First, for unlawfully altering the course of the mayoral election and second, for making a solemn statement in the Court which was false. 

The Bench directed that a show cause notice be issued to Masih, and asked him to respond in three weeks why no steps should be initiated against him for his conduct.