Can citizens be deprived if their elected members jailed for actions in his personal capacity, says HC; order on Malik, Deshmukh tomorrow

After a lengthy hearing on Thursday, the HC reserved the pleas for order and will pronounce it on Friday.

Urvi MahajaniUpdated: Thursday, June 16, 2022, 07:41 PM IST
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Nawab Malik, Anil Deshmukh | Facebook

The Bombay high court on Thursday asked whether citizens of a constituency could be deprived if their elected member was imprisoned for actions in his personal capacity.

Justice NJ Jamadar said, “These are MLC elections. He (Malik and Deshmukh) is in jail on charges for something he has allegedly done in his personal capacity.” He further asked, “Election to the legislative council is indirect. Would it not deprive the electorate of that constituency, if an elected member was sent to jail for actions in his personal capacity?”

The HC was hearing the pleas filed by jailed NCP leaders – state minister Nawab Malik and former state home minister Anil Deshmukh seeking permission to cast their votes in the Maharashtra Legislative Council elections on June 20.

After a lengthy hearing on Thursday, the HC reserved the pleas for order and will pronounce it on Friday.

Amit Desai, Malik’s counsel, contended that the minister’s case was a simple request for going under escort while being in the court's custody to cast his vote. He argued that though section 62(5) of the Representation of People's Act imposed a prohibition or an embargo on those in prison from voting, such prohibition was on account of “physical difficulties” such as arranging for security, creating requisite infrastructure for prison inmates to vote.

Desai said that at present Malik is in a hospital and not confined inside a prison. “He is also yet to be convicted so he is not disqualified from the process of casting his vote,” argued Desai. He further contended that the HC had the discretion to grant requisite permission in the present case.

“Can there be a case that an undertrial, who has the presumption of innocence, the case against whom hasn't even been opened in the court, is deprived of his right to vote in a democracy? Or, that he is excluded from a democratic process?” asked Desai.

Vikram Chaudhri, Deshmukh’s counsel, argued that though section 62(5) imposed restrictions and “fettered the right of a prisoner to cast his vote”, the court had “unfettered powers” to exercise its discretion.

Opposing their pleas, Additional Solicitor General Anil Singh, appearing for the Enforcement Directorate, argued that the court exercising discretion in the present case would prove contrary to the embargo imposed by law.

Requesting the court from exercising its discretion, Singh said: “The law says if one is in prison, one cannot vote. So if one is released, even with an escort, for casting one's vote, then what is the purpose of 62(5)? Besides, they are asking for facilities such as escorts.”

To this, Justice NJ Jamadar said the case at present was not one of regular elections.

Singh however, said that the politicians should challenge the legal provisions and approach the parliament if they had a grouse.

Both Deshmukh and Malik have been in judicial custody following their arrests earlier this year in separate cases of corruption and money laundering.

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