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Voicing its deep concern over "horse-trading", the Supreme Court said on Monday it will examine on Tuesday the ballot papers of the Chandigarh mayoral poll and video recording of the counting, saying instead of ordering fresh polls, it may consider declaration of results on the basis of votes already cast.
The Bharatiya Janata Party won the Chandigarh mayoral polls on January 30 defeating the comfortably placed Aam Aadmi Party-Congress alliance candidate after the returning officer declared invalid eight votes of the coalition partners, drawing accusations of tampering with ballots.
Manoj Sonkar of the Bharatiya Janata Party 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.
"We are deeply concerned about the horse-trading which is taking place," a bench comprising Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra said, and directed the registrar general of the Punjab and Haryana High Court to depute a judicial officer to bring the records safely to New Delhi and present them before it on Tuesday.
"We will list this tomorrow and see the ballot papers and decide what to do. This whole business of horse trading which is going on is very disturbing. Let the entire video of counting of the votes be also produced tomorrow (Tuesday) noon," the CJI said.
"We direct that the ballot papers, which have been placed in the custody of the Registrar General of the high court will be produced tomorrow morning before this court at 10:30 am by a judicial officer to be nominated by the Registrar General...," the bench said in its order passed after a brief hearing.
Later, the bench said the matter will be taken up at 2 p.m. and refused to adjourn the proposed hearing of Tuesday.
It also directed the administration to make arrangements necessary to ensure the safe transit of the judicial officer nominated by the registrar general in pursuance of its order.
The court also directed Returning Officer Anil Masih to remain present on Tuesday as well.
At the outset, Solicitor General Tushar Mehta, appearing for the Chandigarh administration, suggested that a fresh election be held under the supervision of a judicial officer who can be appointed by the high court to “obviate allegations/ counter allegations”.
The counsel for AAP councillor and defeated mayoral candidate Kuldeep Kumar vehemently opposed the suggestion.
The bench orally observed that the electoral process may be taken to "its logical conclusion from the stage which was reached immediately before the declaration of the results".
The CJI said the court will ask the registrar general of the high court to nominate a judicial officer to oversee the process of counting of the ballot papers and "let the results be declared on that day by disregarding the defacement which was put by the returning officer either in the form of putting any marks or whatever...".
During the hearing, the CJI voiced displeasure over the way the poll was held and told Masih he could be prosecuted.
"This is a very serious matter...In case of any falsehood, you will be prosecuted," he warned the returning officer and asked him why was he seen looking into the camera and putting ‘X' marks on ballot papers.
Masih has been accused of defacing eight ballot papers that were declared invalid.
"All the ballot papers were defaced. I was just marking them. There were so many cameras that I was just looking at them,” the returning officer said.
The returning officer admitted to putting ‘X' marks on the eight ballot papers to ensure they do not get mixed.
"You can sign the ballot papers. But why you were putting ‘X' on those ballot papers," the bench said, adding under the rules the returning officer can only sign on ballots.
"It means you marked it," the CJI said, adding he has to be prosecuted and "this cannot be allowed in an electoral democracy".
The counsel for AAP said Masih was a member of the minority wing of the BJP and regardless of his misdemeanour the poll process can now be taken to its logical conclusion.
The contention was opposed by the solicitor general on the ground that some of the ballot papers were believed to be torn.
The top court had rapped the returning officer also on February 5, observing it was obvious that he had defaced the ballot papers and that he should be prosecuted, adding his action amounted to "murder" and "mockery" of democracy.
Defeated AAP mayoral candidate Kuldeep Kumar has 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.
The apex court was also critical of the Punjab and Haryana High Court not passing any interim order.
The AAP leader contended the alliance had 20 votes in the civic body as against 16 of the BJP and that eight ballots of the alliance were rendered invalid by defacing them.