Brazen malpractice: SC on presiding officer’s role in Chandigarh mayor poll case

‘It is evident that the Presiding Officer is guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer’

New Delhi: The Supreme Court will decide on March 15 the future proceedings to be initiated against presiding officer Anil Masih for altering the course of the Chandigarh mayoral polls and for stating “patent falsehood” before the Supreme Court on defacing 8 ballots, an action that led to the defeat of the Aam Aadmi Party (AAP) candidate Kuldeep Kumar, who was ultimately declared Mayor by the top court on February 20.

‘This is not an ordinary case of alleged malpractice by candidates in an election, but electoral misconduct by the presiding officer himself.’ (Getty Images/iStockphoto)

The bench headed by Chief Justice of india (CJI) Dhananjaya Y Chandrachud, which passed the order, a copy of which was uploaded on Thursday, said, “List the Civil Appeal on 15 March 2024 for considering the response of the seventh respondent (Anil Masih) to the notice which has been directed to be issued to him.”

The Court had directed the Registrar (Judicial) to issue a show cause notice to Masih, the presiding officer of the January 30 mayoral polls of the Chandigarh Municipal Corporation, seeking his response as to why steps should not be initiated against him under Section 340 of the Code of Criminal Procedure 1973.

The bench, also comprising of justices JB Pardiwala and Manoj Misra said, “This is not an ordinary case of alleged malpractice by candidates in an election, but electoral misconduct by the presiding officer himself. The brazen nature of the malpractice, visible on camera, makes the situation all the more extraordinary, justifying the invocation of the power of this Court under Article 142.” In the video he was seen making a small line on the 8 ballots cast in favour of AAP candidate. Each time he did it, he looked into the camera, which made the Court observe that he acted as a “fugitive”, a charge that he denied.

The Court initiated proceedings against Masih for making a false statement before the Court. During the proceedings held on February 19, when the Court required him to remain personally present, Masih had said that he put a sign on the eight ballots as they were defaced. However, on February 20, when the Court played the video footage of the entire election process in open court, the bench caught his lie as the ballots were not defaced before he placed the mark.

The Court held, “The ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast. But that apart, it is evident that the Presiding Officer is guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer.”

The Court held the result declared by Masih to be “contrary to law” and set it aside and allowed him to file his response to the notice before March 15. The Court further directed that AAP’s Kuldeep Kumar shall be the new Mayor as it added the 8 votes, declared invalid by Masih, to be added to his original tally of 12 votes, getting him a clear majority of 20 votes against his rival Manoj Sonkar of the Bharatiya Janata Party (BJP) who polled 16 votes.

In a subtle message to him, the Court said, “To maintain the purity of the electoral process, the ‘little cross’ on the ‘little bit of paper’ must be made only by the metaphorical ‘little man’ (voter) walking into the ‘little booth’ and no one else.”

Kumar’s legal team had a battery of lawyers led by senior advocate Abhishek Manu Singhvi, Punjab advocate general Gurminder Singh, additional advocate general Shadan Farasat and advocate Talha Abdul Rahman while Masih was represented by senior advocate Mukul Rohatgi. For the Chandigarh administration, solicitor general Tushar Mehta requested the Court to hold fresh elections, a request seconded by senior advocate Maninder Singh, appearing for Sonkar. Although he defeated Kumar in the Mayoral polls, Sonkar had tendered his resignation after the top court began examining the issue.

During the proceedings of this case, another development took place as three AAP councillors defected to BJP, a fact that did not go unnoticed by the Court which commented on February 19 that reports of horse-trading are “deeply disturbing”. This also weighed with the Court in avoiding a fresh election as it held that the infirmity was only at the stage of counting of votes by the presiding officer.

The bench said, “Elections at the local participatory level act as a microcosm of the larger democratic structure in the country. Local governments, such as municipal corporations, engage with issues that affect citizens’ daily lives and act as a primary point of contact with representative democracy.”

As this process was sought to be vitiated by Masih, the Court said, “The process of citizens electing councillors, who in turn, elect the Mayor, serves as a channel for ordinary citizens to ventilate their grievances through their representatives – both directly and indirectly elected. Ensuring a free and fair electoral process throughout this process, therefore, is imperative to maintain the legitimacy of and trust in representative democracy.”

Treating this to be an “exceptional situation” the Court stepped in using its extraordinary powers under Article 142 to do complete justice to declare Kuldeep Kumar as the Mayor. It said, “We are of the view that this Court must step in in such an exceptional situation to ensure that the basic mandate of electoral democracy at the local participatory level is preserved.”