Chandigarh mayoral poll: SC appoints retired HC judge as observer

The Supreme Court on Monday appointed Justice Jaishree Thakur — a former Judge of the Punjab and Haryana High Court— as an independent observer to physically supervise the Chandigarh mayoral election on January 30.

“The election proceedings shall be conducted in the physical presence of the learned observer. The election proceedings will be duly videographed,” a Bench led by Justice Surya Kant ordered.

“The Returning Officer is directed to contact the learned independent observer and coordinate with the Hon’ble Former Judge well before the scheduled date of election,” said the Bench which also included Justice N Kotiswar Singh.

“All the necessary security arrangements shall also be made,” it ordered.

“The learned observer shall be paid an honorarium of Rs One Lakh which shall be paid by the Union Territory Administration of Chandigarh within one week,” it said.

The order came on a petition filed by Chandigarh Mayor Kuldeep Kumar seeking a direction to the UT Administration to hold the Chandigarh mayoral election by ‘show of hands’ instead of ‘secret ballot’ to ensure fairness in the process.

On behalf of the Chandigarh Administration, Solicitor General Tushar Mehta said he had no objection to the appointment of an independent observer.

“History may not repeat every-time...but if your Lordships feel, an independent observer may be appointed. But every corporation may not come here,” Mehta said.

Senior counsel Gurminder Singh, representing Kumar, suggested that the Mayoral election should be by ‘show of hands’, instead of ‘secret ballot’ in order to ensure fairness in the process.

“We all know what happened during the last elections when it was a secret ballot and CCTV video recording,” Singh had submitted on Friday.

However, the Bench said, “Our concern is complete transparency should be maintained. We issued notice only for the purpose of independent observer appointment.”

On Friday, the top court had issued notice to the Chandigarh UT Administration and asked it to respond to Kumar’s petition which also demanded appointment of an independent observer to conduct free and fair elections.

Hinting at appointing a retired judge to oversee the election process, the Bench – which also included Justice N Kotiswar Singh – had made it clear that the election process shall continue.

Kuldeep Kumar has challenged the Punjab and Haryana High Court’s order rescheduling the polls after January 29 and ordering him to continue as mayor till then.

Singh had said the Punjab and Haryana High Court held that Kumar was entitled to function as the Chandigarh Mayor for 12 months from January 30, 2024 when the results were first declared instead of February 20, 2024 when the results were set aside and Kumar declared elected as Chandigarh Mayor by the Supreme Court.

“It will be the date of election which in this case is January 30 and not February 20, when his election was restored. You were declared elected as mayor from the very date of inception. It does not depend on the time of physical occupation of the seat,” Justice Surya Kant had said, noting that no fresh election was ordered.

Setting aside the Chandigarh mayoral poll results, the Supreme Court had on February 20 last year declared AAP-Congress combine candidate Kuldeep Kumar the winner.

Using its plenary powers under Article 142 of the Constitution, a three-judge Bench led by CJI DY Chandrachud (since retired) held that the eight votes declared invalid were validly cast in favour of Kumar and who had in fact got 20 votes against 16 votes of BJP candidate Manoj Sonkar.

“The eight votes which were treated as invalid by making those markings ... counting the 8 votes for the petitioner (AAP candidate Kumar) will make him have 20 votes. We direct that the election result by the presiding officer is quashed. The AAP candidate is declared to be the winner of the Chandigarh mayoral polls,” Justice Chandrachud had said.

Out of the 36 votes, BJP candidate Manoj Sonkar had bagged 16 votes against the 12 received by Kuldeep Kumar after eight votes were rejected in the January 30 polls to elect the Mayor of the Chandigarh Municipal Corporation. However, Sonkar resigned.

Deprecating Returning Officer Anil Masih’s conduct in unlawfully changing the results, the top court ordered initiation of criminal proceedings against him under Section 340 of the Criminal Procedure Code for ballot-tampering.

Masih “unlawfully altered the course of the mayoral election” and the statement he made before the court on February 19 was a “patent falsehood”, the top court had said, directing the Registrar Judicial to issue a notice to Masih, to show cause as to why steps should not be initiated against him under Section 340 CrPC.