In a detailed order rejecting pleas of NCP leaders – state minister Nawab Malik and former home minister Anil Deshmukh – the Bombay High Court said on Friday: “It is 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”.
Justice NJ Jamadar in his 23-page judgment has said that in order to maintain purity of electoral process, prohibition of certain participants is required to strengthen the democratic principles.
“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 [of the Representation of People's Act (RP Act)] is stated to be arresting the criminalization of politics,” said justice Jamadar.
Rejecting the pleas the court, therefore, said: “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.”
Counsels for Malik and Deshmukh, Amit Desai and Vikram Chaudhari, had argued that the NCP leaders have a “constitutional duty to cast vote in the said election”. Hence, the fact that they are incarcerated cannot preclude them from discharging their constitutional duty.
The counsels had requested the HC to exercise its discretion and permit them to cast their vote despite the prohibition and embargo envisaged under the section 62(5) of the RP Act.
The court noted that the argument that the Court can remove the embargo “is fraught with infirmities” on grounds.
One, the NCP leaders have sought their release only for the purpose of overriding the interdict contained in Section 62(5), said HC.
“Secondly, the exercise of discretion is again sought in such a fashion that the net result would be permitting a person to exercise the franchise, who is otherwise prohibited by law,” said HC adding that the 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,” added justice Jamadaar.
Justice Jamadar noted that, in order to uphold the constitutional norms and democratic values, the court may be required to summon the inherent powers to remedy the malady. “The Court cannot be said to be completely denuded of the authority to exercise such jurisdiction,” it said.
Giving an example, the HC said that where on the eve of the election, a number of members of the electoral college are put behind the bars with a view to deprive them of the opportunity to vote in the election so as to achieve a desired result. In such an exceptional situation, the Court may be justified in issuing directions so that the ‘custody’ of the members of the electoral college does not become a “subterfuge for divesting them of their right to vote”.
However, in the case of Deshmukh and Malik, the HC noted that they have been in custody since long. “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,” added the HC.
The court also said it was not inclined to grant their alternative prayer to “remove the embargo” and allow them to cast vote, whilst being in custody, does not merit acceptance.
Both Deshmukh and Malik have been in judicial custody following their arrests earlier this year in separate cases of corruption and money laundering.