[Rajya Sabha Polls] Mumbai court rejects plea by Anil Deshmukh, Nawab Malik seeking one day bail to vote

A Mumbai court on Thursday rejected the pleas by Maharashtra Cabinet Minister Nawab Malik and former State Home Minister Anil Deshmukh seeking temporary bail for a day to cast their votes in the upcoming Rajya Sabha elections..Special judge RN Rokade heard all the parties at length on Wednesday before passing his order today."In view of said provision (Section 62(5) of the Representation of People Act), I am inclined to hold that the accused is not entitled to vote in Rajya Sabha elections. ...the accused cannot claim entitlement to get the facility to go at Vidhan Bhavan and vote for Biennial Election" the special judge observed. Both Malik and Deshmukh had pointed out that since they are Members of the Legislative Assembly and of the electoral college for election of members, they should be allowed to cast their votes. The Enforcement Directorate (ED) in a short reply, had opposed the application contending that prisoners do not have voting rights..Senior Advocate Amit Desai for Malik argued that an accused has a right to vote."There cannot be a preventive detention from preventing a person from exercising a constitutional right to vote...That is illegal," the senior counsel argued. He emphasised that there has to be a differentiation between a person who is in prison and a person who is in the hospital. Further, he stated that Malik was in judicial custody, not in prison."Disqualification from voting arises due to corruption .... So if I was convicted and then I came to court, then the court could have denied.... But in my case I can (vote), as I am not convicted."Further, it was highlighted that if elected members were slapped with fake First Information Reports (FIR) and consequently not allowed to vote, it would have serious consequences. "This will hurt the democratic values if elected members cannot do their duty...He is a proxy for the people of his constituency and has a duty,” it was contended. Desai also contended that Malik, who is a sitting minister, not voting in the elections would affect his political party as well..Senior Advocate Abad Ponda for Deshmukh argued that 'once in custody hence cannot vote' argument did not apply to all cases, but only certain categories of offences.The senior counsel, in fact, suggested that any of the following conditions could be imposed by the court while allowing Deshmukh to cast his vote. "Grant me bail under Section 45 of the PMLA with sureties, release me for a day on account of sickness etc., or release me from confinement with escorts," it was submitted..Additional Solicitor General (ASG) Anil Singh, appearing for the ED, argued that as per the Representation of the People Act (RP Act), a person in prison cannot vote even if he is an undertrial."My submission is that if you go by the plain and simple language (of RP Act), you have no right to vote," said the ASG.The ASG argued that as per the RP Act, a person in prison cannot vote. Singh further stated that as per the top court, there was a curtailment in movement, therefore, no question to vote arose. Additionally, the ASG relied on judgments of the Supreme Court to submit that the right to vote is not fundamental right but only a statutory right. It was his submission that when the applicant was in prison because of his own conduct, he could not ask for such privileges."The classification is valid when the person is in prison and when he is not in preventive detention. That is all. The reason is to ensure that there is no criminalisation in politics," the ASG said. .Malik is presently in judicial custody for his alleged involvement in a money laundering case under the Prevention of Money Laundering Act (PMLA) involving underworld don Dawood Ibrahim.Deshmukh, who is also in judicial custody, is the prime accused in a corruption case after a probe was initiated by ED. This was after Central Bureau of Investigation (CBI) filed a first information report (FIR) against him following a Court-directed enquiry..Desai appeared alongwith Advocates Kushal Mor and Rohan Dakshini briefed by Rashmikant & Partners. Singh was briefed by Union Panel counsel Shreeram Shirsat and Sunil Gonsalves. .[Read our live-coverage of the hearing yesterday here].[Read orders]