Beaten AAP candidate conquers winner in Chandigarh mayoral poll after SC intervenes

New Delhi: The Supreme Court on Tuesday declared defeated AAP-Congress alliance candidate Kuldeep Kumar the mayor of Chandigarh after overturning the result of the controversial poll where the BJP nominee had emerged an unlikely winner, in an unprecedented intervention to set right a brazen attempt by the returning officer to rig the election.

It ordered prosecution of returning officer Anil Masih, a BJP leader, for "serious misdemeanour" for making an allegedly false statement before the court that he had invalidated eight ballots because they had been defaced.

Exercising its plenary power under Article 142 of the Constitution to do complete justice, the apex court said the result declared by the returning officer, a nominated councillor, was clearly contrary to law.

A bench headed by Chief Justice D Y Chandrachud said in such a case, the top court was duty bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to ensure that the process of electoral democracy is not allowed to be thwarted by subterfuge.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, said the court must step in where exceptional situations develop to ensure that the basic mandate of electoral democracy is preserved.

"We accordingly order and direct that the result of the election as declared by the presiding officer (Masih) stands quashed and set aside. The petitioner (Kumar) is declared to be the validly elected candidate for election as mayor of the Chandigarh Municipal Corporation," the bench ruled.

The top court said in each of the eight ballot papers, which were invalidated by Masih, the votes were duly cast in favour of Kumar.

The Congress party hailed the Supreme Court decision on the "farcical election", saying it saved democracy from the fangs of an "autocratic BJP" that resorted to dirty election manipulation.

Congress president Mallikarjun Kharge said the "institutional sabotage" is only the "tip of the iceberg in Modi-Shah's devious conspiracy to trample democracy".

Slamming Prime Minister Narendra Modi following the verdict, Congress leader Rahul Gandhi said, "Masih (the returning officer for the poll) is just a 'pawn' in the BJP's conspiracy to murder democracy, behind which is the 'face' of Modi." The Supreme Court has saved democracy in these "difficult times", Delhi Chief Minister and AAP national convener Arvind Kejriwal said.

Terming the decision historic, Kejriwal said it was a big victory for the Indian National Developmental Inclusive Alliance (INDIA). "The message of this poll is that if INDIA bloc parties remain united and work strategically, they can defeat the BJP," he asserted.

The BJP had won the Chandigarh mayoral polls on January 30 defeating the comfortably placed AAP-Congress alliance candidate after the returning officer declared as invalid eight votes of the coalition partners, drawing accusations of tampering with ballots.

Manoj Sonkar of the Bharatiya Janata Party (BJP) defeated Kuldeep Kumar after polling 16 votes against his rival's 12 to bag the mayor's post.

Sonkar, however, resigned subsequently, while three AAP councillors defected to the BJP.

In its verdict, the apex court noted that as per the result declared on January 30, Kumar had got 12 votes and his tally of votes now goes up to 20 after adding the eight which were invalidated.

The bench said Masih had evidently put his own mark on these eight ballot papers for the purpose of creating a ground for treating them as invalidly cast.

"That apart, it is evident that the presiding officer (Masih) is guilty of serious misdemeanour in doing what he did in his role and capacity as presiding officer," it said.

The bench said Masih had made a deliberate effort to deface eight ballots which were cast in favour of Kumar so as to secure a result where Sonkar would be declared elected.

"During the course of these proceedings, for the above reasons, we have come to the conclusion that the result which was declared by the presiding officer is clearly contrary to law and will have to be set aside. We order accordingly," it said.

The apex court said 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 done by Masih.

"Allowing the entire election process to be set aside would further compound the destruction of the fundamental democratic principles which has taken place as a consequence of the conduct of the presiding officer," it said.

The bench said 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 referred to Masih's statement made before the court on Monday where he admitted to have put 'X' marks on eight ballots besides signing them in the course of counting of votes to identify them as defaced.

The bench, which scrutinised the ballot papers during the hearing and also saw the video recording of the counting process, said none of ballots were defaced as claimed by Masih.

The order of criminal prosecution of Masih came after the CJI took a strong view of his "flip-flops" during the judicial proceedings and "misdemeanour" during the counting process.

The bench said even if the mark placed by Masih was taken into consideration, that does not create any doubt about the candidate in favour of whom those eight votes were cast.

"The conduct of the presiding officer has to be deprecated at two levels. Firstly, by his conduct he has unlawfully altered the course of the mayoral election; Secondly, in making a solemn statement before this court on February 19, the presiding officer expressed falsehood for which he must be held accountable," the bench said.

It said as the returning officer, Masih could not have been unmindful of the consequences of making such a statement before the court.

The bench directed the registrar (judicial) of the apex court to issue a notice to Masih to show cause as to why proceedings should not be initiated against him under section 340 of the Code of Criminal Procedure for allegedly making a false statement before the court.

It said he can file his response to the notice and the matter would be taken up after three weeks.

The bench also noted that before recording Masih's statement on Monday, the court had placed him on notice about the serious consequences he could face if he was found to have made an incorrect statement.

During the hearing on Tuesday, the apex court scrutinised the ballot papers and watched the video recordings which were brought before it by a judicial officer appointed by the Punjab and Haryana High Court's Registrar General.

"We would like to see ballots which were invalidated," the CJI said at the outset.

After looking at the ballots, the bench asked Masih, "Yesterday, you told us that you put that line because the ballot papers were defaced. Look at it. Where are the ballot papers defaced".

Senior advocate Mukul Rohatgi, appearing for Masih, who was also present in the court, said the returning officer put a mark on these eight ballot papers because, as per his assessment, they were defaced.

"He may be right, he may be wrong, but to call him a thief is not correct," Rohatgi said.

Defeated AAP mayoral candidate Kuldeep Kumar had moved the top court challenging a Punjab and Haryana High Court order which refused to grant any interim relief to the party which sought a fresh poll.