An Electoral Misconduct By Presiding Officer Himself: SC While Declaring AAP’s Kuldeep Kumar To Be Validly Elected Candidate For Chandigarh Mayor Poll
|The Supreme Court while declaring Kuldeep Kumar, the candidate of Aam Aadmi Party (AAP) as the validly elected candidate for the election as Mayor of the Chandigarh Municipal Corporation, said that there is an electoral misconduct by the Presiding Officer himself.
Kuldeep Kumar had filed an appeal against an interim order of the Punjab and Haryana High Court passed in a writ petition alleging electoral malpractices by the presiding officer who conducted the election to the post of Mayor.
The three-Judge Bench comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “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 extraordinary, justifying the invocation of the power of this Court under Article 142.”
The Bench said that 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 and that ensuring a free and fair electoral process throughout this process, therefore, is imperative to maintain the legitimacy of and trust in representative democracy.
Senior Advocates Abhishek Manu Singhvi and Gurminder Singh appeared for the appellant while Senior Advocates Mukul Rohatgi and Maninder Singh appeared for the respondents. Solicitor General Tushar Mehta appeared for the Union Territory of Chandigarh.
In this case, the High Court issued a notice and listed the petition of Kuldeep Kumar after three weeks but it declined to stay the result of the election or grant any other interim relief. He approached the Apex Court assailing the said order and raised serious allegations about the sanctity of the election. Section 38 of the Punjab Municipal Corporation Act 19762, extended to the Union Territory of Chandigarh by the Punjab Municipal Corporation Law (Extension to Chandigarh) Act 19943, provides that the Chandigarh Municipal Corporation shall, at its first meeting in each year, elect one of its elected members to be the Mayor of the Corporation. Section 60(a) of the Act provides that the meeting for the election of the Mayor shall be convened by the ‘Divisional Commissioner’, who shall nominate a councillor who is not a candidate for the election, to preside over the meeting.
Similarly, Regulation 6(1) of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 19964 provides that a meeting for the election of a Mayor shall be convened by the ‘prescribed authority’ who shall nominate a Councillor who is not a candidate to preside over the meeting. The Deputy Commissioner of the Union Territory of Chandigarh has been designated as Presiding Authority for this purpose by a Notification dated October 4, 1994. On January 10, 2024, Vinay Pratap Singh, IAS, Deputy Commissioner, Union Territory of Chandigarh acting in his capacity as the Prescribed Authority directed the convening of a meeting of the Councillors in terms of Section 38 of the Act at 11 am on 18 January 2024. Anil Masih, one of the councillors who was not standing for the mayor election was nominated as the presiding authority. The agenda of the meeting was to conduct the election of Mayor, Senior Deputy Mayor, and Deputy Mayor of the Corporation and the elected Councillors desirous of contesting the election were called upon to file their nominations for the posts.
The Supreme Court in the above regard said, “… 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. … 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.”
The Court was of the 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 and that 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.
“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. … 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”, it noted.
The Court further said that 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 issued by it.
“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. … 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”, it directed.
The Court also observed that 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.
Accordingly, the Apex Court disposed of the writ petition and issued necessary directions.
Cause Title- Kuldeep Kumar v. U.T. Chandigarh and Others (Neutral Citation: 2024 INSC 129)
Appearance:
Appellant: Senior Advocates Abhishek Manu Singhvi, Gurminder Singh, Advocate Shadan Farasat, AOR Talha Abdul Rahman, Advocates Amit Bhandari, Siddharth Seem, Abhishek Babbar, Harshit Anand, Shaz Khan, Adnan Yousuf, Ramanpreet Bara, Ferry Sofat, R.P.S. Bara, and Karamanbir Singh.
Respondents: SG Tushar Mehta, Senior Advocates Maninder Singh, Mukul Rohatgi, Adundhamauli Prasad, Advocate Bansuri Swaraj, AOR Siddhesh Shirish Kotwal, Advocates Prateek Gupta, Varun Chugh, Ana Upadhyay, Manya Hasija, Tejasvi Gupta, Pawan Upadhyay, T. Illayarasu, Ashita Chawla, Ajay Sabharwal, Rangasaran Mohan, Amarpal Singh Dua, Raghunatha Sethupathy B., Mutu Thangadurai, and Misha Rohatgi.