MUMBAI: Bombay high court on Friday rejected pleas of Maharashtra ex-home minister Anil Deshmukh and cabinet minister Nawab Malik to vote at the forthcoming Maharashtra Legislative Council (MLC) polls on June 20.The two Nationalist Congress Party (NCP) MLAs Malik and Deshmukh are presently incarcerated as undertrial prisoners in alleged money laundering cases.Justice N J Jamadar had on Thursday heard arguments at some length. It had said the lawyers need to address and argue on the express bar in section 62(5) of the Representation of Peoples Act against voting by people behind bars. The judge had also posed a question when ED sought dismissal of the politiciansâ pleas. The Judge had said, âElection to Legislative Council in indirect. Would it not deprive the electorate of the constituency if the elected member was sent to jail for actions in his personal capacity (and denied voting rights)?ââOn Friday when he pronounced his rejection of their petitions the judge didnât give his reasons and a reasoned detailed order will be available later on Friday.On Thursday Malik’s senior counsel Amit Desai had said the law doesnât bar the HC from exercising its unfettered discretionary powers to enable the undertrial prisoners to exercise their constitutional and democratic rights.Desai said, âan accused can file nomination to contest but the court will not permit him to vote for himself at the election Such dichotomy was never intended in the law. The law must be construed harmoniously, and the courts must lean in favour of ensuring democratic and political processes continueâ¦the simple request to be allowed to vote has now become a much larger legal question.ââThe Enforcement Directorate (ED) represented by Additional Solicitor General Anil Singh opposing any such permission had said the Representation of Peoples Act under section 62 (5) does not permit undertrials in prison to vote. âwhere is the question of discretion? The HC cannot read something into something that is âcontrary to the Actââ. He said moreover they are seeking escorts, such facilities would burden the system.Desai said Malik is not seeking bail, just half-hour to go cast his vote. âIntention of the legislature was never that a person alleged to have committed a crime should be barred from voting,ââ Desai had submitted adding the RP Act disqualifies certain kinds of people from voting but section 62(5) invoked by the trial court to deny them permission for the Rajya Sabha Polls merely says those confined to prison cannot vote. âIt only means the ballot cannot be brought to them. The court in its discretion can grant bail bond or permit under escort.ââFor Deshmukh, senior counsel Vikram Chaudhri had argued that the plea was simply to allow the ex-home Minister to go out of jail, under medical escort or a dayâs bond just to vote, as is their right and duty as legislators. âThe question is not the ambit of 62(5) of the RP Act. The single issue is that in the peculiar facts, would your lordship allow release for a few hours for a person who is confined in prison.âMalik is presently in a hospital, albeit under Judicial custody.The trial court had earlier denied Malik and Deshmukh permission to vote for the June 10 RS elections citing section 62(5) of the RP Act to say they are not permitted to vote since they are in prison.
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