Delhi HC Refuses Re-Poll for Bar Council of Delhi Election, Orders Counting to Resume with Tighter Safeguards
A Division Bench upheld the HPESC's rejection of re-polling after admitted ballot tampering, directing counting to restart from the elimination stage with new camera, custody and staffing rules.
A Special Division Bench of the Delhi High Court, comprising Justice Anil Kshetarpal and Justice Tejas Karia, on 6 June 2026 dismissed four writ petitions seeking a fresh poll for the Bar Council of Delhi (“BCD”) election held in February 2026. The petitioners had argued that the admitted tampering of ballot papers by a counting staff member during the 80th elimination round, and the registration of FIR No. 45/2026 at P.S. Tilak Marg, had irreparably vitiated the entire electoral process. The Bench disagreed. It upheld the order of the High-Powered Election Supervisory Committee (“HPESC”) declining re-polling, held that first-preference counting was valid, and issued a detailed set of directions on camera placement, ballot custody, staff verification, and the handling of doubtful ballot papers before counting resumes.
The Election and the Tampering Incident
The BCD election was held on 21, 22 and 23 February 2026 in the precincts of the High Court of Delhi. A total of 221 candidates contested 23 seats under the preferential voting system. Recorded votes on the three polling days were 17,585, 16,300 and 23,800 respectively. First-preference counting ran from 7 March to 9 April 2026. Elimination-based counting of subsequent preferences began on 13 April 2026.
On 15 April 2026, during the 80th elimination — that of Mr. Syed Mohd. Arif (Ballot No. 17) — a member of the Election Committee noticed that several ballot papers bore altered next-preference markings in favour of a particular candidate. The pattern appeared on multiple ballots: the figure “2” had been made to resemble “12” by prefixing the digit “1”. Counting was halted. The 18 affected ballots were recalled, photographed, and the votes transferred to the candidate against whom the original next preference appeared to have been marked. Counting then continued briefly before the lunch break.
During the interval, camera recordings were reviewed. A counting staff member, Mr. Nikhil Kumar, was identified as the person who had handled the affected ballots. On inquiry, it emerged that he had joined the counting process on 2 April 2026 through a contractor, Mr. Prabodh Kumar, and that the candidate Mr. Vishnu Sharma (Ballot No. 132) was his maternal uncle. FIR No. 45/2026 was registered at P.S. Tilak Marg, and Mr. Nikhil Kumar was produced before the police on 15 April 2026. A total of 27 manipulated ballots were ultimately identified — 18 on 15 and 16 April 2026, and a further 9 after counting resumed on 13 May 2026.
The events that followed were turbulent. On 16 April 2026, a group of candidates and their representatives entered the counting area on the 7th Floor of S-Block, raised slogans and used defamatory language against the Returning Officer (“RO”) and counting officers, halting counting for the day. On 25 April 2026, when counting was to resume, certain candidates and their supporters blocked the main gate and obstructed counting staff from reaching the floor. The original RO, Justice Talwant Singh (Retd.), resigned on 25 April 2026 citing vilification campaigns. A second appointee, Justice Dharmesh Sharma (Retd.), resigned on 5 May 2026. Mr. Rakesh Munjal, Senior Advocate, was appointed RO on 6 May 2026.
The HPESC Order and the Route to the High Court
The HPESC had been constituted by the Supreme Court on 18 November 2025 in M. Varadhan v. Union of India, W.P.(C) No. 1319/2023, to supervise State Bar Council elections on a pan-India basis. The Supreme Court's order in that case also directed that the HPESC's decisions would be final and that no civil court or High Court would entertain petitions against them.
One hundred and sixteen contesting candidates approached the HPESC seeking a re-poll on the ground of ballot tampering and other alleged irregularities. By order dated 6 May 2026 (“Impugned Order”), the HPESC rejected the prayer and directed counting to recommence from the stage immediately after completion of first-preference counting on 9 April 2026.
Aggrieved, the petitioners filed Special Leave Petitions before the Supreme Court. By order dated 18 May 2026 in Birender Sangwan v. High Powered Election Supervisory Committee & Ors., the Supreme Court transferred the SLPs to the Delhi High Court, directed that further counting remain in abeyance until final adjudication, and requested the Chief Justice to list the matters before a Special Bench for day-to-day hearing. W.P.(C) No. 7972/2026, filed directly before a Single Judge, was transferred to this Bench by order dated 29 May 2026. The matters were heard on 30, 31 May and 1 June 2026, with judgment reserved on 1 June 2026 and delivered on 6 June 2026.
Maintainability: Whether the High Court Could Entertain the Petitions
The BCD and the applicants in the connected miscellaneous application raised a preliminary objection. They argued that Article 329(b) of the Constitution bars judicial interference in an ongoing election, that the Supreme Court in M. Varadhan had made the HPESC's decisions final and excluded High Court jurisdiction, and that the appropriate remedy was an election petition before the Election Tribunal constituted under Rules 34 and 86 of the Bar Council of Delhi Rules, 1963, after declaration of the result.
The Bench held that the objection could not be sustained in the present proceedings. The Supreme Court had itself transferred the SLPs to this Court for adjudication on merits, reserved liberty to all parties to raise all contentions, and directed that counting remain stayed pending the High Court's decision. The Bench reasoned that the Supreme Court, being fully aware of the framework in M. Varadhan and of the constitution of Election Tribunals, had nonetheless transferred the matters, and that this transfer carried with it an implicit acceptance of the High Court's jurisdiction to decide them. The matters were accordingly held maintainable.
Whether the Tampering Vitiated the Entire Election
The petitioners' central submission was that once criminal tampering of ballot papers was admitted and an FIR registered, the fairness of the entire electoral process stood compromised. They contended that the HPESC's finding that the first round of counting was unaffected was unsupported by investigation, that the re-verification exercise was not conducted by an independent authority, that candidates were excluded from meaningful participation, and that the investigation remained incomplete since the FIR itself contemplated the involvement of unidentified persons. They also pointed to a net unexplained variance of 1,469 votes at the close of first-preference counting.
The Bench rejected the prayer for re-polling. It found that the manipulation was detected during the 80th elimination, that Mr. Nikhil Kumar had joined the counting process only on 2 April 2026, that no counting took place on 10 and 12 April 2026, and that the manipulation could therefore only have occurred between 13 and 15 April 2026. The Bench also reasoned that interpolation during first-preference counting was inherently improbable because the identities of candidates likely to be eliminated in subsequent rounds were not then known. On 16 April 2026, the Election Committee had undertaken a comprehensive reconciliation of all ballot papers from the tables at which Mr. Nikhil Kumar had worked, and the HPESC had recorded that all such papers were rechecked and corrections made.
The Bench held that the 27 manipulated ballots did not go to the root of the electoral process. It noted that the BCD Rules, read with the BCI Guidelines of 11 February 2026, already provided a mechanism for dealing with defaced or doubtful ballot papers. Rather than ordering a re-poll, the Bench directed that all ballot papers bearing erasures, overwriting, corrections, additions, or other suspicious variations be segregated as “doubtful ballots” and placed before the learned Additional Solicitor General, who would determine how each was to be counted and record brief reasons. The ASG's decision on each such ballot would be final, and the doubtful ballots and recorded reasons would be preserved separately.
The Bench expressly upheld the Impugned Order insofar as it declined the prayer for a re-poll or annulment of the BCD Election, observing that the incident of manipulation did not vitiate the electoral process in its entirety.
First-Preference Counting: No Recount Required
The petitioners argued that Mr. Nikhil Kumar's presence from 2 to 9 April 2026 during first-preference counting itself vitiated that stage. The Bench reviewed video recordings of the first-preference counting. They showed that each sealed ballot box was brought to the counting podium under continuous camera surveillance, seals and locks were opened on the podium in the presence of the Election Committee and Special Returning Officers, and each ballot paper was placed on the podium in a manner visible to candidates and their representatives seated on the 6th Floor of S-Block. The Bench found no real possibility of tampering during first-preference counting and held that no recount of first-preference votes was warranted.
MCC Violations, Reconciliation, and Other Grievances
The petitioners raised a range of additional grievances: widespread Model Code of Conduct violations, discrepancies in vote counts, inadequate livestreaming, presence of unauthorised persons, and the alleged absence of institutional separation between the Special Committee and the Election Committee. The Bench found that the Election Committee and the RO had continuously monitored MCC compliance, issued show-cause notices, and taken action against violators throughout the process. The reconciliation issue had already been addressed by orders of this Court dated 2 April 2026 in W.P.(C) 4316/2026 and 13 April 2026 in W.P.(C) 4907/2026, which directed that reconciliation be undertaken before declaration of the result. The Bench found no merit in these additional grounds.
On the visual display grievance, the Bench acknowledged that the videos shown during the hearing lent some credence to the petitioners' contention that the camera angle did not permit the entire ballot paper to be seen and that not all counting tables were within the field of view of the installed cameras. It directed that a high-resolution camera be placed above each counting table to ensure that each ballot paper is captured in full and with clarity, and that the feed be live-streamed on YouTube and the High Loop App as previously.
Order
All four writ petitions — W.P.(C) Nos. 7531/2026, 7532/2026, 7533/2026 and 7972/2026 — were dismissed and disposed of on 6 June 2026 with the following directions:
Counting shall recommence from the stage at which it stopped pursuant to the Supreme Court's interim order of 18 May 2026. Before recommencement, all ballot papers presently kept in open baskets, whether in cloth bags or otherwise, shall be transferred to lockable boxes or bags, which shall remain locked during every break and at the close of each counting day.
A high-resolution camera shall be placed above the counting table to ensure each ballot paper is captured in full. The entire counting process shall be continuously videographed and live-streamed in real time. The Election Committee and RO shall examine the existing CCTV system to ensure all cameras continuously capture all counting tables and all persons stationed thereat, with no material stage of handling or movement of ballot papers falling outside their field of view.
No counting staff shall be engaged through Mr. Prabodh Kumar. All counting staff shall be engaged only after proper verification, issuance of photo-identity cards, and submission of an undertaking confirming no conflict of interest with any contesting candidate.
All ballot papers bearing erasures, overwriting, corrections, additions, or other suspicious variations — including the 27 already identified as manipulated — shall be segregated as doubtful ballots and placed before the learned Additional Solicitor General for a decision on how each is to be counted, with brief reasons recorded. That decision shall be final.
A complete digital recording of the counting process shall be preserved on a backup storage device and shall not be overwritten, altered, or destroyed until expiry of the limitation period for filing an election petition before the Election Tribunal. The Counting Hall and all areas connected with the custody or handling of ballot papers shall remain under continuous CCTV surveillance, with a complete digital and physical log of every entry and exit maintained as part of the election record.
If any petitioner or their authorised representative obstructs the counting process, misbehaves with any member of the Election Committee, the RO, the Observer, or any counting staff, or enters the 7th Floor of S-Block without authority, the Election Committee shall take appropriate steps in accordance with law. All rights and contentions of the petitioners are reserved for any election petition before the Election Tribunal upon conclusion of the BCD Election. The observations in the judgment are prima facie in nature and shall not influence any Election Tribunal.