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MLC polls: Supreme Court denies Nawab Malik, Anil Deshmukh permission to cast votes
The Supreme Court on Monday refused permission to jailed Nationalist Congress Party legislators Anil Deshmukh and Nawab Malik to cast their votes in the Maharashtra legislative council elections, citing a law that bars prisoners from voting in any parliamentary of state elections
New Delhi: The Supreme Court on Monday refused permission to jailed Nationalist Congress Party (NCP) legislators Anil Deshmukh and Nawab Malik to cast their votes in the Maharashtra legislative council elections, citing a law that bars prisoners from voting in any parliamentary of state elections.
It, however, agreed to examine the issue relating to the interpretation of Section 62(5) of the Representation of the People Act 1951, which bars jailed persons from voting.
In view of the clear bar placed under Sector 62(5) of the Representation of the People Act, 1951, which has been upheld by the Supreme Court in the Anukul Chandra Pradhan v Union of India cases in 1997, no interim relief can be granted, a vacation bench of justices CT Ravikumar and Sudhanshu Dhulia observed.
In their plea, former Maharashtra home minister Anil Deshmukh and state’s minority development minister Nawab Malik sought permission to be escorted by police from jail to the state legislative assembly to cast their votes before the polling ends at 4pm on Monday. The court’s order came with barely 15 minutes left in the voting to conclude.
“Even if we have to give an order releasing you, we have to order you to be taken by a chopper,” said the bench.
The matter was mentioned before the top court on Monday morning when the bench agreed to take it up post-lunch at 2 pm. On June 17, the Bombay high court refused permission to both NCP leaders to cast their votes. They approached the top court against the high court’s order.
“It is something harsh on you, but what to do, law is harsh,” the court remarked.
The bench, however, did not dismiss their petitions and agreed to examine the interpretation of the RP Act saying the matter can arise in future cases as well and issued notices to the Centre and the Maharashtra government seeking their responses within four weeks.
“Although the petitioners have not challenged the validity of Section 62(5) of RP Act, we cannot go into that aspect. But this provision is slightly undemocratic. A person who is in police custody can be elected, but he cannot vote,” the bench observed.
Senior advocate Meenakshi Arora, who appeared for the two legislators, said, “I am an elected representative of my constituency and people have sent me to the Assembly. I represent their choice, their right to governance and decision-making. This provision curtails not just my right but that of the electorate.”
Arora pointed out that under Article 171(3)(d) of the Constitution, it is the constitutional duty of the MLA to elect one-third of the members of the legislative council by casting their vote. “I am seeking a right under Article 171 for purpose of election to legislative council. I have to exercise my vote as MLA, a function that I have to exercise under Article 171,” she submitted, seeking a last minute indulgence faced with the paucity of time.
The bench asked Arora to show some laws that make a distinction between the right of an elector and that of an elected representative to show the distinction that the right to vote of an elected representative stood on a different footing.
Arora cited a 2007 decision where the Supreme Court allowed then jailed MP from Bihar’s Siwan district, Mohammad Shahabuddin, to be taken under police escort to Parliament for casting vote in the election to the office of Vice-President. She also cited a 2003 decision by a two-judge bench in Peoples Union for Civil Liberties v Union of India which held right to vote to be a constitutional right.
Solicitor General Tushar Mehta, appearing for the Centre, told the court that a constitution bench in NP Ponnuswami case (1952) held that right to vote is a statutory right and by law, even a constitutional right can be curtailed, in this case by Section 62(5). This section does not apply to those detained in jail under preventive detention. As against the petitioners, Mehta said that both face charges under the Prevention of Money Laundering Act (PMLA).
On the SC relief granted to Shahabuddin, Mehta said the definition election under Section 2(d) of RP Act does not apply to Presidential and Vice-Presidential election.
“When were you arrested…That will be crucial to see if you were arrested just to deprive you of your voting right,” the bench asked Arora.
Malik was arrested in March 2022 and Deshmukh in November 2021.
“These are completely political matters,” said Arora. “We are 54 MLAs in the House. Each MLA has right to get two members elected to legislative council. The whole purpose is to keep us in custody.”
Refusing to accept this submission, the bench said: “Are you justified in contending this. You were taken into custody much before that.”
The bench further asked the two petitioners if they had sought bail. Arora said an alternate prayer of bail was taken but the only request pressed is to permit them to cast vote under police escort. Earlier this month, the two MLAs approached the high court for casting vote in the elections to Rajya Sabha which, too, was declined.
“If you vote or not, the seat will be filled. Here there is a statutory provision that says any person in prison shall not be allowed to vote. For academic purpose, we can consider whether this provision should be interpreted differently for elected representatives. But no interim relief can be granted,” the bench ordered.
On Friday, the Bombay high court in its order said, “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 prohibition under the RP Act is stated to be arresting the criminalization of politics.”
A total of 11 candidates are in the fray for the 10 seats in the Maharashtra MLC elections with five from the Bharatiya Janata Party (BJP) and two each from the Shiv Sena, the NCP and the Congress —partners in the state’s ruling Maha Vikas Aghadi (MVA) coalition.
