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The pleas filed by Maharashtra Cabinet minister Nawab Malik and former State Home minister Anil Deshmukh seeking permission to cast vote in the upcoming Maharashtra Member of Legislative Council (MLC) elections have been rejected by the Bombay High Court on Friday.
As per the verdict that was delivered today by Justice NJ Jamadar, the two ministers would not be released from judicial custody for casting their vote in elections to be held on June 20.
The two ministers are planning to file an appeal against the order before the Supreme Court against the High Court verdict.
Amit Desai who represented Deshmukh said that though the Representation of People Act puts restrictions on casting vote, it does not take away the discretion of the Court to permit release.
The Additional Solicitor General Anil Singh from the Enforcement Directorate had opposed the pleas citing Section 62(5) of the Act which bar any prisoner to vote.
The two leaders 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.
The Bombay High Court on Thursday reserved its verdict in the pleas filed by Maharashtra cabinet minister Nawab Malik and former State home minister Anil Deshmukh seeking permission to cast vote in the upcoming Maharashtra Member of Legislative Council (MLC) elections
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The ASG Anil Singh said “What cannot be allowed directly, cannot be allowed indirectly.
Justice Jamadar asked if restricting legislators from participating in elections would amount to depriving the constituents of exercising 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?”
To this, ASG responded that the conduct of the person was required to be considered.
“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…” the ASG said.
Senior Advocate Amit Desai for Malik prayed that though the statute puts restrictions on casting vote, it does not take away the discretion of the Court to permit release.
“The problem is if you are in prison then the law states that when you are in prison you cannot expect the election commission to organise polling booths inside the prison for lakhs of people. However the section cannot take away the discretion. Nothing stops the court from using your order discretion,” Desai contended.
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He emphasized that the Court should lean in favour of democratic process unless there are larger issues like law and order problem. If the election is going to be compromised because of a person not coming out to vote, the Court must step in, he contended.
Senior Advocate Vikram Chaudhri contended that the legal proposition by ED that the court cannot have discretion was a dangerous one.
“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”
-Chaudhri said.