Nawab Malik, a Maharashtra cabinet minister, and Anil Deshmukh, a former State home minister, had approached the Bombay High Court on the grounds that they should be allowed to vote in the upcoming Maharashtra Member of Legislative Council (MLC) elections because they are Ministers of the Legislative Assembly.
On June 17, the Court will rule on whether the two ministers can be temporarily released from judicial custody with police escorts in order to vote in the upcoming elections on June 20.
The Enforcement Directorate (ED), represented by Additional Solicitor General Anil Singh, challenged the petitions, claiming that Section 62(5) of the Representation of People Act clearly prohibited people imprisoned from voting.
“What cannot be allowed directly, cannot be allowed indirectly,”the ASG argued.
Justice Jamadar questioned whether excluding MPs from voting would obstruct people’ ability to exercise their rights indirectly.
“Election to MLC is an indirect method of election. Will this not deprive the constituents of his constituency from taking part in the MLC election? What he did was in his personal capacity. But because of his personal conduct people in his constituency are being deprived?”
ASG stated that the person’s conduct needed to be taken into account.
“The question is not whether they are the voice of people so it might effect the people who have elected him. The question is of the person’s conduct which led him to prison…”AG Stated
Malik’s senior advocate, Amit Desai, argued that while the Act restricts casting votes, it does not take away the Court’s discretion to allow release.
He emphasized that the Court should favour democratic processes until there are broader difficulties, such as law and order issues. He argued that if the election is likely to be tainted by person failing to vote, the Court must intervene.
Senior Advocate Vikram Chaudhri argued that ED’s legal argument that the court cannot exercise discretion is risky.
“The court will always have discretion, my fettered right versus your lordships unfettered discretion. Because there is an embargo (under Section 62(5)) we are here for a release, had there been no embargo, we wouldn’t have had to come,”Advocate Chaudhri stated