From Our Bureau
NEW DELHI: The Supreme Court on Monday refused to allow Maharashtra ministers Nawab Malik and Anil Deshmukh in custody to vote in the upcoming members of legislative council (MLC) elections, but agreed to weigh the law on the right of the imprisoned MLAs to vote.
Deshmukh, a former home minister, is in judicial custody in an alleged corruption case while Malik is in custody for alleged money laundering and illegal possession of assets beyond his means.
However, a bench of Justices CT Ravikumar and Sudhanshu Dhulia said that the petition raises an important question in relation to the right of a Member of Legislative Assembly (MLA) to vote of Legislative Council elections on behalf of his constituency.
It noted that the Bombay High Court on June 17 denied them the voting right since Section 62(5) of the Representation of People Act bars prisoners from voting.
It is being argued that he is an elected representative by others who will elect someone else. This representation is for lakhs of people. Such distinction has not been decided, so we will look into this,” said Justice Dhulia.
“We are saying this, in view of this important question, it will require a deeper consideration,” said Justice Ravikumar.
“A person has been elected but he cannot vote. It is slightly undemocratic. We have not made up our mind. But it is slightly undemocratic,” Justice Dhulia weighed in.
Hence, the top court proceeded to issue notice but refused to pass any interim order.
The arguments reveal that on interpretation of Section 62(5) there is conflict of views. Thus we will have detailed hearing on it. But no interim relief to be granted,” the Court said in its order.
Deshmukh, who is in judicial custody, is the prime accused in a corruption case after a probe was initiated by ED. This was after Central Bureau of Investigation (CBI) filed a first information report (FIR) against him following a Court-directed enquiry.
Malik is also presently in judicial custody for his alleged involvement in a money laundering case under the Prevention of Money Laundering Act (PMLA) involving underworld don Dawood Ibrahim.
The two had approached the High Court on the ground that since they are Ministers of Legislative Assembly, they ought to be given an opportunity to vote in the elections to the Legislative Council.
The two applicants had claimed that High Courts have wide discretionary powers to set aside the statutory embargo under Section 62 (5) of the Representation of People Act on prisoners to cast their vote in elections.
On appeal to the top court, Senior Counsel Meenakshi Arora, appearing for the appellants contended that preventing the two from voting in MLC elections will effectively impact the rights of the all voters who had elected the two lawmakers.
“People have sent me to the Legislative Assembly. I represent their choice and decision making in the Legislative Assembly. If I am deprived of my right to vote, the right of all those persons who voted for me has also been taken away,” Arora said.
Solicitor General (SG) Tushar Mehta, appearing for the Enforcement Directorate, said that the embargo under Section 62(5) applies to MLAs too.
“The embargo applies to MLAs also. Even a fundamental right can be curtailed on the touchstone of some reasonable restrictions,” the SG submitted.
“There is a difference between criminal in jail and a MLA who is in prison. Court has to create this distinction and everything cannot be swept under same carpet,” Arora responded.
The Court opined that it cannot grant relief at this eleventh hour but agreed to examine the law.
“Prima facie, if in police custody you are not entitled. Here you are in judicial custody,” said Justice Ravikumar.
“You read Section 62. Statute does not make any distinction, is there any law making such a distinction. We cannot ruse into things like this. If you could have given us a little more time,” Justice Dhulia said.
The High Court’s single-judge Justice NJ Jamadar had, however, rejected their petitions on the ground that courts cannot ordinarily interfere and allow Members of Legislative Assembly (MLAs) who are behind bars, to participate in voting process for elections to the Legislative Council, unless many such MLAs are put behind bars on the eve of elections as a subterfuge to prevent them from voting.
