KULDEEP KUMAR versus U.T. CHANDIGARH AND OTHERS

15. On 19 February 2024, when the proceedings were listed before this Court again, the following order was passed: "1. Mr Gurminder Singh, senior counsel apprised the Court that in pursuance of the interim order dated 05 February 2024, the ballot papers have been sequestered under the custody of the Registrar General of the High Court of Punjab and Haryana on 05 February 2024. 2. 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. [2024] 2 S.C.R.  Kuldeep Kumar v. U.T. Chandigarh and Others 3. We direct that the ballot papers which have been placed in the custody of the Registrar General be produced before this Court at 2.00 pm on 20 February 2024 by a judicial officer to be nominated by the Registrar General for the purpose of transporting the ballot papers to this Court. 4. Proper security arrangements shall be made to ensure the safe transit of the judicial officer nominated by the Registrar General in pursuance of this Order. Arrangements shall also be made to secure proper preservation and custody of the ballot papers with the judicial officer. 5. The judicial officer shall also produce the entire video of the counting of the votes before the Returning Officer which took place on 30 January 2024. 6. List the Special Leave Petition at 2.00 pm on 20 February 2024.”

16. In pursuance of the above directions, the entire record pertaining to the election of the Mayor was sequestered under the custody of the Registrar General of the High Court, including (i) the ballot papers; (ii) the video footage of the electoral process; and (iii) all material in the custody of the Returning Officer/Presiding Officer. Pursuant to the order dated 19 February 2024, the entire record has been produced before this Court in sealed and secure custody by Shri Varun Nagpal, OSD (Litigation) of the High Court of Punjab & Haryana.

17. On 5 February 2024, during the course of the hearing, parts of the video footage recorded in pursuance of the order of the High Court were played before this Court. The entire video footage has been produced before the Court pursuant to order dated 19 February 2024 and played on the open screens during the hearing.

18. Elections to the post of Mayor are governed by the provisions of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996. Regulation 6 provides for election of the Mayor, including the process of nomination, withdrawal of candidatures and the conduct of the election by a secret ballot. Clauses (9) to (13) of Regulation 6 have a material bearing on the subject matter of the present dispute and serve as a yardstick to 704 test the actions of the Presiding Officer/seventh respondent. The relevant provisions are reproduced below: "(9) No member shall vote for more than one candidate. At the time of voting, each member shall place a cross (X) on the right hand side of the ballot paper opposite the name of the candidate for whom the (sic) wishes to vote, and will then fold the ballot paper and without showing the front of the paper to any person, insert the same in the ballot box in the presence of the presiding authority. (10) lf a member votes for more candidates than one or places any mark on the paper by which he may be identified, his ballot paper shall be considered invalid and will not be counted. A vote recorded on a ballot paper used at the meeting shall be rejected if the marks indicating the vote is placed on the ballot paper in such a manner as to make it doubtful to which candidate the vote has been given. (11) As soon as the period fixed for casting of votes is over, the presiding authority shall open the ballot box and initial each ballot paper. (12) The votes for all the candidates shall then be counted by the presiding authority with the assistance of the Municipal officials or employees as may be designated by the presiding authority and the candidates shall be arranged in the order of the number of votes obtained by each of them. (13) If there are only two candidates, then the one who gets the larger number of votes shall be declared elected.”

19. In terms of Regulation 6(9), a councillor can vote for only one candidate. While voting, each member has to place a cross (X) on the right-hand side of the ballot paper opposite the name of the candidate for whom he wishes to vote, after which the ballot paper has to be folded and inserted in the ballot box in the presence of the Presiding Officer. Regulation 6(10) stipulates when the ballot paper would be treated as invalid and provides for three eventualities. [2024] 2 S.C.R.  Kuldeep Kumar v. U.T. Chandigarh and Others The first is where a member votes for more candidates than one. The second eventuality is where the member places any mark on the paper by which he may be identified. The third eventuality is if the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful for which candidate the vote has been cast. Finally, Regulation 6(11) provides that as soon as the period fixed for casting of the votes is over, the presiding authority shall open the ballot box and initial each ballot paper.

20. From the record, it emerges that Shri Anil Masih, the Presiding Officer had signed each of the ballot papers. However, the video footage appears to indicate that he had also placed certain marks on some of the ballot papers. This was corroborated on 19 February 2024, when Shri Anil Masih, the Presiding authority/seventh respondent, who was present before this Court, stated that besides signing the ballot papers, he had placed his mark on eight ballot papers during the counting of the votes. He stated that he did so as he found that the ballot papers were defaced and sought to highlight them.

21. The grievance of the appellant, urged before this Court by Dr Abhishek Manu Singhvi and Mr Gurminder Singh, senior counsel is that the video footage leaves no manner of doubt that the Presiding Officer while initialing the ballot papers placed an ink mark on the lower half of eight ballot papers, all of which were cast in favour of the appellant. It has been urged that the votes were treated as invalid only as a result of the marks which were put by the Presiding Officer. Consequently, it has been submitted that a deliberate effort was made by the Presiding Officer to treat eight of the votes which were cast in favour of the appellant as invalid and to declare the eighth respondent as the elected candidate on the basis that he had secured sixteen votes. Hence, it has been submitted that the electoral process has been vitiated by the misconduct of the presiding authority, as a consequence of which the democratic process leading up to the election of the Mayor of the Chandigarh Municipal Corporation has been seriously impaired.

22. Mr Mukul Rohatgi, senior counsel appeared on behalf of the Presiding Officer/seventh respondent and urged that the entire process of the election was not only video recorded but both the contesting candidates and their representatives were present in the assembly hall where the counting took place. Mr Rohatgi further submitted that 706 apart from initialing the ballot papers, the Presiding Officer placed certain marks in the bottom half of the eight ballots which were treated as invalid based on his assessment that these ballots had already been defaced.

23. Mr Maninder Singh, senior counsel appearing on behalf of the eighth respondent 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. During the pendency of these proceedings, the eighth respondent has tendered his resignation and hence, it has been submitted that a fresh election would have to be held in terms of the provisions of Section 38(3) of the Act.

24. Mr Tushar Mehta, Solicitor General appeared for the Union Territory of Chandigarh and clarified that he is not representing the Presiding Officer/seventh respondent in these proceedings.

25. As stated above, Regulation 6(9) indicates that at the time of voting, each member shall place a cross (X) on the right-hand side of the ballot paper opposite the name of the candidate for whom the member wishes to vote. The ballot paper is then folded and placed in the ballot box. The entire record (including the ballots in question) has been produced before this Court in secure custody.

26. The entirety of the dispute turns on the eight ballot papers which were treated to be invalid by the Presiding Officer. We have perused the ballot papers in question. All the ballot papers contain the name of the appellant in the upper half and the name of the eighth respondent in the lower half. Below the names of the candidates is the signature of the Presiding Officer. After the ballots are cast, the Presiding Officer is required to initial each ballot in terms of Regulation 6(11). Each of the ballot papers bears two signatures of the Presiding Officer. It is evident from the physical inspection of the eight ballots which were treated to be invalid that in each of those cases, the vote was cast by the member in favour of the appellant. The Presiding Officer has placed a line in ink by way of a mark at the bottom half of each of the ballots which have been treated to be invalid. During the course of the hearing yesterday, the Presiding Officer informed this Court that he did so because he found that the ballots had been defaced. Before recording the statement of the Presiding Officer in the above terms, we had placed him on notice of the serious consequences [2024] 2 S.C.R.  Kuldeep Kumar v. U.T. Chandigarh and Others which are liable to ensue if he was found to have made a statement before this Court which was incorrect.

27. The eight ballots which have been perused before the Court have also been perused by the counsel appearing on behalf of the appellant and for the successful candidate among others. It is evident that in each of the eight ballots, the vote had been duly cast in favour of the appellant. Further, the Presiding Officer has evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot to have been invalidly cast.

28. In doing so, the Presiding Officer has clearly acted beyond the terms of his remit under the statutory regulations. These regulations have been framed by the Municipal Corporation in exercise of powers conferred by Section 65 of the Act as extended to the Union Territory of Chandigarh. Clause (10) of Regulation 6 provides for three eventualities, as already noticed earlier, in which a ballot can be treated as invalid, namely: (i) Where a member has voted for more than one candidate; (ii) Where a member places any mark on the paper by which he may be identified; and (iii) If the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful over which candidate the vote has been cast.

29. None of the above eventualities are fulfilled in the present case.

30. There is absolutely no dispute about the factual position that in each of the eight ballots the vote was cast for one person which is evident from the rubber stamp appearing on the upper half of the ballot in each of those cases. Likewise, there is no mark on the ballot which would indicate that the person who cast the vote would be identified. The third ground which evinces a situation where the mark is placed in such a manner so as to make it doubtful for which candidate the vote has been cast would not arise on a plain perusal of the ballots. Even if the mark which was placed by the Presiding Officer is taken into consideration, that mark does not create any doubt about the candidate in favour of whom the vote was cast. The vote was cast by placing a rubber stamp on the upper half of the ballot and hence the ink mark which was placed on the bottom half by the Presiding Officer would be of no consequence. The ballots had not been 708 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.

31. As stated above, Regulation 6(1) requires the nomination of a councillor who is not a candidate at the election to preside over the meeting. This provision has been made to ensure that the person who acts as Presiding Officer would do so with objectivity. It is evident that the Presiding Officer in the present case has made a deliberate effort to deface the eight ballots which were cast in favour of the appellant so as to secure a result at the election by which the eighth respondent would be declared as the elected candidate.

32. Before this Court yesterday, 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.

33. For the above reasons, we have come to the conclusion that the result, which was declared by Shri Anil Masih, the Presiding Officer is plainly contrary to law and would have to be set aside. We order accordingly.

34. During the course of these proceedings, the eighth respondent who was elected as Mayor has tendered his resignation. Senior counsel appearing on behalf of the eighth respondent has adverted to the provisions of Section 38(3) in terms of which on the occurrence of any casual vacancy, inter alia, in the office of the Mayor, the Corporation is required within a month of the occurrence of the vacancy to elect one of its members as Mayor to hold office for the remainder of the term of office of the predecessor. [2024] 2 S.C.R.  Kuldeep Kumar v. U.T. Chandigarh and Others

35. In the underlying writ petition before the Punjab & Haryana High Court, the appellant had, inter alia, sought the setting aside of the election process and for the holding of a fresh election process and consequential reliefs. However, 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.

36. This Court has consistently held that free and fair elections are a part of the basic structure of the Constitution.5 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. 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.

37. We are of the considered view that in such a case, this Court is duty-bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to do complete justice to ensure that the process of electoral democracy is not allowed to be thwarted by such subterfuges. 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. We are, therefore, 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. Pertinently, 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 Kihoto Hollohon v. Zachilhu and Ors., [1992] 1 SCR 686 : AIR 1993 SC 412; Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347 : 1975 Supp SCC 1. 710 extraordinary, justifying the invocation of the power of this Court under Article 142.

38. From the result sheet, which has been reproduced in para 11, it has emerged that while the appellant is reflected to have polled twelve votes, eight votes cast in favour of the appellant were treated as invalid. As detailed above, each of those eight invalid votes was in fact validly cast in favour of the appellant. Adding the eight invalid votes to the twelve votes which the Presiding Officer recorded to have been polled by the appellant would make his tally twenty votes. The eighth respondent, on the other hand, has polled sixteen votes.

39. We accordingly order and direct that the result of the election as declared by the Presiding Officer shall stand quashed and set aside. The appellant, Kuldeep Kumar, is declared to be the validly elected candidate for election as Mayor of the Chandigarh Municipal Corporation.

40. Further, 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, Shri 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.

41. The Registrar (Judicial) is accordingly directed to issue a notice to show cause to Shri Anil Masih of the Chandigarh Municipal Corporation who was the Presiding Officer at the election which took place on 30 January 2024, as to why steps should not be initiated against him under Section 340 of the Code of Criminal Procedure 1973. The notice shall be made returnable on 15 March 2024.

42. Shri Anil Masih shall have an opportunity to file his response to the notice to be issued in pursuance of the above directions in the meantime.

43. The ballots and the video footage which were unsealed for the perusal of the Court shall be sealed again and returned to the OSD (Litigation) of the High Court of Punjab and Haryana for safekeeping [2024] 2 S.C.R.  Kuldeep Kumar v. U.T. Chandigarh and Others before the Registrar General of the High Court. This shall be subject to further orders of the competent court.

44. The other elections which are required to be held in terms of the regulations shall now take place in accordance with law, save and except for the election of the Mayor which has been resolved by the final directions which have been issued herein-above.

45. Before concluding, we echo the observations by Justice VR Krishna Iyer, (speaking for himself, Beg, CJ and Bhagwati, J) in Mohinder Singh Gill v. Chief Election Commissioner.,6 albeit in a different context of the powers of the Election Commission of India and the parameters of Article 329(b) of the Constitution, pertaining to elections to the Houses of Parliament and the State Legislatures. Justice Krishna Iyer observed: "2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words: “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper — no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men “dressed in little, brief authority”. For “be you ever so high, the law is above you”. (emphasis supplied) In order 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” walking into the “little booth” and no one else. [1978] 2 SCR 272 : (1978) 1 SCC 405 712

46. The writ petition before the High Court shall stand disposed of in terms of the above directions.

47. List the Civil Appeal on 15 March 2024 for considering the response of the seventh respondent to the notice which has been directed to be issued to him. Headnotes prepared by: Divya Pandey Result of the case: Directions issued.