Bombay HC rejects jailed netas’ pleas to go out & vote in MLC polls | Mumbai News – Times of India

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[google-translator]

Anil Deshmukh & Nawab Malik wanted to vote in Monday’s elections

MUMBAI: Holding that there is an express bar under law on people in prison from voting, the Bombay high court on Friday said it cannot exercise its discretion to permit NCP leaders Anil Deshmukh and Nawab Malik to exercise the franchise “which is otherwise prohibited by law.” Justice N J Jamadar rejected pleas by Deshmukh, 73, and Malik, 62, to be permitted out of prison confines-in Malik’s case out of a Kurla hospital-to cast their votes as MLAs for the June 20 MLC or Maharashtra legislative Council elections.
The “inescapable” inference of Section 62(5) of Representation of People Act is that “a person in custody, either post conviction or during the course of investigation or trial, is prohibited from casting vote in any election,” held the HC.
Malik’s counsel Amit Desai had said HC has the discretion to let them out to go and vote as the larger issue of upholding democratic principles comes to the fore. The judge however found his submission that HC can remove the embargo created by Section 62(5) of RP Act on voting by prisoners was “fraught with infirmities”, intended to override the law’s interdict. ASG Anil Singh for the Enforcement Directorate had argued the court has no discretion when law clearly prohibits an act-in this case, voting in an election when behind bars.
“Discretion has to be exercised within the bounds of law. Conversely, there is no unfettered discretion, even in the Courts, to validate a course of action, which the law proscribes,” said the 23-page judgment. It agreed with the ASG that the law prohibits imprisoned people from voting in Rajya Sabha elections and for certain seats in the legislative council too.
“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,” said Justice Jamadar. One of the objects of the RP Act was to arrest 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 democracy,” the judge reasoned.
The HC judge however said its (court’s) inherent powers may be required to be invoked to “remedy a malady” and uphold the constitutional norms and democratic values, and the HC cannot be said to be completely denuded of its jurisdiction then. An illustration, said the judge, could be if on the eve of elections, a number of the members of electoral college are imprisoned to deprive them of the opportunity to vote in the election; then, though the ‘section’ under the Act would be unassailable, the ‘action’ would be open to correction in such “exceptional situation” to prevent their ‘custody’ from turning into a “subterfuge for divesting them of their right to vote.”
But in Malik’s and Desmukh’s case, it noted both were behind bars “since long – Deshmukh since last November and Malik since this March.” “No such motive of putting the Applicants behind the bar so as to prevent them from participating in the election process can be attributed, at least, at this length of time,” the HC reasoned and also found no merit in Desai’s and Deshmukh’s counsel Vikram Chaudhri’s plea to use its discretion to lift the legal embargo.
The HC, interpreting the RP Act’s Section 62(5), said, “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.”

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