Mumbai The Bombay high court (HC) will pass orders in the applications filed by arrested Nationalist Congress Party (NCP) leaders Nawab Malik and Anil Deshmukh, seeking temporary release on June 20 to vote for the Maharashtra Legislative Council (MLC) elections on Friday.
Alternatively, they sought police escort to take them to the Vidhan Bhavan between 9 am and 6 pm so they could exercise their franchise.
Senior advocate Amit Desai, appearing for Malik, informed the single-judge bench of justice NJ Jamadar that his client was not seeking bail, but was merely seeking directions for being escorted to the voting venue.
While referring to the discretionary powers of the HC, Desai submitted that though courts did not interfere in political processes, but as it was a question of allowing democratic process to continue, hence as section 62 (5) of the Representation of the People Act did not restrain the HC from passing orders to facilitate the process of voting, it should use its discretion and allow the applicant to vote.
Desai added that if Malik’s vote was invalid, it was the prerogative of the Returning Officer to declare the same but it could not be an excuse to curtail Malik’s right to vote in the MLC elections. He submitted that as there were no previous judgements or orders of the Supreme Courts or HC which took away the discretionary powers of the HC and as there would be no law and order situation in permitting Malik to go and cast his vote, the court must invariably exercise discretion in favour of fair political process.
{{/usCountry}}Desai added that if Malik’s vote was invalid, it was the prerogative of the Returning Officer to declare the same but it could not be an excuse to curtail Malik’s right to vote in the MLC elections. He submitted that as there were no previous judgements or orders of the Supreme Courts or HC which took away the discretionary powers of the HC and as there would be no law and order situation in permitting Malik to go and cast his vote, the court must invariably exercise discretion in favour of fair political process.
{{/usCountry}}Advocate Vikram Chaudhari, appearing for Deshmukh, said that the application was not adversarial and hence the Enforcement Directorate’s (ED) opposition was questionable. Chaudhari submitted that he was only seeking release for a short period so that his client could go and exercise his franchise and the HC had the discretion to permit it.
On its part, the ED, which was represented by additional solicitor general (ASG) Anil Singh, submitted that the Representation of People Act had clearly refuted the right to vote for prisoners.
On a query of the bench as to whether not allowing an elected representative from acting on behalf of his voters would deprive citizens of his constituency from (indirectly) taking part in the MLC elections, ASG Singh stated that the question before the bench was not whether the citizens were being deprived of their rights but the question was of the conduct of the applicants which put them in prison.
Singh added that if the applicants were challenging the provision in law which debarred them from voting in the MLC polls they could do so in a separate plea and not this one.
After hearing all sides, the bench concluded the hearing and said it was reserving its orders which would be pronounced on Friday.
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