The Bombay High Court on Friday released its order rejecting the plea of Maharashtra Minister Nawab Malik and former state Home Minister Anil Deshmukh seeking temporary release to cast vote in the Maharashtra Legislative Council Elections. The Single Bench of Justice N.J. Jamadar held that the claim to exercise the right to vote cannot be absolute.

The duo had moved the Supreme Court against the Bombay High Court's order and the Court has agreed to hear the appeal while refusing any interim order. (read report)

The Bombay High Court had rejected their argument that their participation in voting would strengthen the democracy by holding, "It would be suffice to note that the concept of 'democracy' transcends 'electoral democracy'. Purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles. One of the objects of the prohibition envisaged by sub-section (5) of Section 62 is stated to be arresting the criminalization of politics. I am, therefore, not inclined to accede to the broad proposition that permitting the persons (who are otherwise not qualified to vote in the election) strengthens the democracy."

Notably, both applicants-Nawab Malik and Anil Deshmukh have been in custody in connection with offence under Prevention of Money Laundering Act.

The applicants had prayed for bail before the Special Judge, PMLA. However, their application for bail was rejected. Hence they filed pleas before the High Court.

Senior Advocates Amit Desai and Vikram Choudhary appeared for the applicants whereas Additional Solicitor General, Anil C. Singh, appeared for the respondent- the Directorate of Enforcement.

Senior Advocate Amit Desai submitted that sub-section (5) of Section 62 of the Representation of the People (RP) Act, 1951, which provides that no person shall vote at any election if he is confined in prison, did not provide an absolute bar.

He further submitted that the person in custody may be prevented from exercising the right to vote, but the Court was not precluded from exercising the discretion to remove the embargo by permitting the person in custody to cast the vote.

He argued that the applicants were yet to be tried and were entitled to the presumption of innocence, and that they cannot be prevented from performing their constitutional duty.

Senior Advocate Vikram Chaudhary supplemented the submissions of Mr. Desai by more forcefully canvassing the submission that the matter was in the realm of discretion of the Court.

In response to this Additional Solicitor General, Anil C. Singh, stoutly submitted that the submissions which were sought to be canvassed on behalf of the Applicants, were repelled by the Courts.

He argued that the R.P.Act, 1951 was a complete Code in itself, and that there was no element of discretion left in the Courts. He contended that even the alternative relief of permitting the Applicants to cast vote, under escort, was unworthy of countenance. He further argued that the right to vote was a statutory right and that if the statute can provide such right, then it can be legitimately taken away by the statute.

The Court observed that the election to State Legislative Council was regulated by the provisions of the R.P.Act, 1951 wherein sub-section (5) of Section 62 contained an interdict against the right to vote by a person who was confined in prison.

"Indubitably, the Parliament has not made any distinction, in the matter of prescribing the aforesaid disqualification on account of being in custody on the basis of the bodies, to which election is held. The proviso, however, excludes a person who has been detained in custody as a preventive detention measure from the said bar", the Court noted.

On the contention that a right to vote is now not merely a statutory right, but has been elevated to the level of a constitutional right, the Court opined that "Indisputably, the Applicants profess to exercise their right to vote in the capacity of the Members of the Legislative Assembly, which constitutes the electoral college for electing the Members of the Legislative Council under Article 171(3)(d) of the Constitution of India. The claim to exercise of this constitutional right can, by no stretch of imagination, be said to be absolute."

The Court further observed that "The situation which thus obtains is that even on the premise that the Applicants have constitutional right to exercise and duty to discharge in the capacity of the members of the Maharashtra Legislative Assembly, the same are regulated by statutory prescriptions. If the Parliament has declared that a person who is incarcerated, otherwise than as a detenue under the preventive detention law, is not entitled to vote at an election, the said prescription would govern the rights and duties of the Members of the Legislative Assembly as electors."

The Court examined a catena of judgments relied upon by the applicants while submitting that the Court is required to adopt an approach which advances the cause of democracy. And to that end held "These orders were passed in a variety of matters like permitting the elected representatives to participate in the Presidential Election, cast vote in 'no confidence motions', and file nomination papers for being elected to Legislative Assembly etc. In none of these cases, the issue like the one of interdict contained in Section 62(5) of the Representation of the People Act, 1951 was required to be delved into."

The Court placed reliance on a few judgments that directly dealt with the provisions contained in Section 62(5) of the Representation of the People Act, 1951.

The Court noted that on the first principles of statutory interpretation as the text of sub-section (5) of Section 62 was explicitly clear and unambiguous, and that it had to be construed in accordance with its plain and grammatical meaning. And to that end held "the proscription against the right to vote by a person who is in custody, otherwise than by way of preventive detention, is plain and direct. The Parliament has, in its wisdom, not carved out any exception for election to constitutional bodies, which are to be elected by indirect method of election."

The Court also noted that the Additional Solicitor General was justified in canvassing a submission that the use of the expression "by reason of prohibition to vote under this sub-section" indicated that the Parliament was fully alive to the fact that the prohibition to vote operated even for election to Rajya Sabha and certain seats in the Legislative Council, for which indirect method of election was followed.

The Court further noted that yet the Parliament had carved out a limited exception that, despite such prohibition, a person whose name was entered in the electoral roll would not cease to be an elector.

"The submission on behalf of the Applicants that the prohibition to vote under the main part of sub-section (5) of Section 62, is only with a view not to permit a large body of persons, who might be incarcerated at a given point of time, does not apply with equal force to a restricted electoral college, like the one for election to the members of the Legislative Council, does not merit countenance," the Court held.

The Court held that the submission that Court can remove the embargo created by sub-section (5) of Section 62 is also fraught with infirmity.

The Court also observed that in this case, the applicants were in custody for long and hence no such motive of putting them behind the bar in order to prevent them from voting could be attributed.

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