[MLC elections] Courts can intervene only if many MLAs put behind bars as subterfuge to prevent them from voting: Bombay High Court

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, the Bombay High Court held [Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs Directorate of Enforcement].

The correctional jurisdiction of courts can be applied only if a number of members of the electoral college are put behind the bars with a view to deprive them of the opportunity to vote so as to achieve a desired result, the High Court said.

"In such an exceptional situation, the Court may be justified in issuing directions so that the ‘custody’ of the members of the electoral college does not become a subterfuge for divesting them of their right to vote," the Court opined.

The observations of the Court came in the 23-page order rejecting the pleas of Maharashtra cabinet minister Nawab Malik and former state home minister Anil Deshmukh seeking leave to cast vote in the upcoming member of Maharashtra Legislative Council elections.

The two applicants 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 go and cast their vote in elections.

Justice NJ Jamadar held that courts could not be completely denuded of the authority to exercise its jurisdiction to grant permission to vote, however the same is conditional.

Since in the present case, no motive of preventing the two MLAs from participating in the electoral process could be attributed to the arrest, the pleas by Malik and Deshmukh were rejected by the Court.

The two applicants had invoked their right to vote in the capacity of MLA, which constituted the electoral college for electing MLCs under the Constitution.

The Court however opined that this right was not absolute.

"...If the Parliament has declared that a person who is incarcerated, otherwise than as a detenue under the preventive detention law, is not entitled to vote at an election, the said prescription would govern the rights and duties of the Members of the Legislative Assembly as electors" Justice NJ Jamadar said.

Since the legislature had expressly not permitted voting for a certain class of persons, Justice Jamadar did not seem inclined to allow the request of the applicant.

"One of the objects of the prohibition envisaged by Section 62(5) is stated to be arresting the criminalization of politics. I am, therefore, not inclined to accede to the broad proposition that permitting the persons (who are otherwise not qualified to vote in the election) strengthens the democracy" the order stated.

In conclusion, the only question to be considered, as per the court, was whether it would be justified in removing the embargo by either permitting release of applicants on temporary bail or permitting them to cast vote with escorts.

Justice Jamadar was of the opinion that this question was fraught with infirmities for the following reasons:

• the release of the Applicants is sought only for the purpose of overriding the interdict contained in Section 62(5);

• the exercise of discretion is again sought in such a fashion that the net result would be permitting a person to exercise the franchise, who is otherwise prohibited by law;

• discretion has to be exercised within the bounds of law.

"...there is no unfettered discretion, even in the Courts, to validate a course of action, which the law proscribes," the judge concluded, while rejecting the applications.

[Read Order]