Chandigarh mayor polls: SC flags horse trading fears, quizzes returning officer, decides to examine ballots

In an interim order on February 5, the SC asked the “entire record pertaining to the election…be sequestered under the custody of the Registrar General of the Punjab and Haryana High Court”.

On Monday, the SC bench also comprising Justices J B Pardiwala and Manoj Misra was told that the order had been complied with. The court then directed that “the ballot papers which have been placed in the custody of the registrar-general be produced before this court tomorrow by a judicial officer to be nominated by the registrar-general for the purpose of transporting the ballot papers to this court”.

“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,” it added.

Solicitor-General Tushar Mehta, who appeared for the Chandigarh administration, said, “The entire video may also be called for”.

The bench then directed the judicial officer to be nominated by the high court registrar-general to produce the entire video of the counting of votes which took place before the returning officer on January 30.

Taking a grim view of what transpired during the counting of votes on January 30, the SC had asked Returning Officer Anil Masih to appear before it.

SC bench quizzes Anil Masih

“I am asking you questions. If I find that you are not giving me a truthful answer, you will be prosecuted. Every word which you say will be held liable for what you said. You are not in a political contest. You are in a court of law.. understand that. It’s a very serious matter. We have viewed the video on the last location..,” the CJI cautioned Masih before asking him, “What were you looking at the camera and putting your marks to cross out the ballot papers?”

Masih replied that the councillors were making too much noise and screaming “camera, camera” and this is what prompted him too to stare at it. “That’s why I was looking at the cameras. That was the only reason,” he said.

Masih said that as per procedure, he had to sign the ballot papers after voting and that he had found some of them to be defaced. “I was only highlighting this so that these ballot papers should not be mixed up with the rest,” he added.

Replying to a specific query from the bench, he said he had put ‘X’ marks on eight ballot papers and reiterated that it was only to highlight that they had already been defaced and should not be mixed with the rest.

Turning to Mehta, the CJI said, “This answers what he did, Mr solicitor, very clearly. He has to be prosecuted. I think interfering with the electoral democracy by the returning officer is the gravest possible thing.”

The bench also recorded in its order that Masih “has stated that besides signing the ballot papers, he had put his mark on eight ballot papers during the course of counting of the votes. He states that he did so in view of the fact that he found that the ballot papers have been defaced”.

Mehta said the court may call for a fresh election “because after the counting, there was a commotion”. “Votes were snatched. Some of the votes are torn. And thereafter the marshals were called in. They have tried to retrieve some of the votes, and whatever is there, is in a sealed cover,” he added.

AAP councillor’s arguments

Appearing for AAP councillor Kuldeep Kumar, who lost the mayor post to the BJP’s Manoj Sonkar, senior advocate Gurminder Singh said, “The entire scare which was there on day one, on January 30, was that this is going to lead to horse trading [and] it is going to subvert the electoral process. That eventually seems to have happened.”

Singh said this might be the reason the other side wants fresh elections. He added that all he was asking for was to see if it was possible to deduce from the ballot as to whom the votes were cast for, by ignoring the marking, and to declare the results on the basis of that.

Singh said that as per regulations, the ballots are rendered invalid only on three conditions—if votes are cast for more than two candidates, if any mark is left identifying the voter, if any mark is left on the ballot making it difficult to ascertain to whom the vote is cast.

He submitted that none of these conditions were applicable to the eight ballot papers which were allegedly defaced.

Senior advocate Maninder Singh, who appeared for Sonkar, however, said the regulation was peculiar in that the returning officer is not putting his signature before the ballots are used but after the casting of votes is over.

The court fixed the next hearing on Tuesday, refusing requests to take it up on Wednesday. “These are matters which are too important. We are deeply concerned, but the fact that there is sort of horse trading has taken place,” it said.