Maharashtra’s incarcerated former ministers Anil Deshmukh and Nawab Malik on Friday suffered a similar setback for the second time in eight days, when the Bombay High Court rejected their applications seeking their release for a few hours on June 20 to vote in the Maharashtra Legislative Council (MLC) elections.
After hearing the arguments made by the petitioners of both the petitioners and also the Enforcement Directorate (ED), Justice N. J. Jamdar of the Bombay High Court declined to entertain the pleas by the two NCP leaders who are both members of the Maharashtra Assembly.
Deshmukh and Malik had moved the high court on the ground that they were both MLAs and that they ought to be given an opportunity to vote in elections. By declining to entertain the pleas by the NCP’s two former ministers, the high court made it clear that they could not be released from judicial custody in order to enable them to cast their vote in the elections scheduled for June 20. The lawyers representing Malik and Deshmukh said that the former ministers would file a special leave petition against the order before the Supreme Court on Monday.
Earlier making a strong case for the temporary release of client Malik, senior advocate Amit Desai argued that his client was not seeking his release on bail but was merely seeking permission to be taken to cast his vote with an escort.
Desai told the court that the section 62 (5) of the Representation of the People Act did not prevent the high court from exercising its discretion to pass an order to facilitate the process of voting for Malik and such discretion was not taken away by any of the previous high court or Supreme Court judgments.
Desai argued that the high court must therefore exercise discretion in favour of a fair political process and allow his client to exercise his voting right in the MLVC elections. Advocate Vikram Chaudhari, who appeared for Deshmukh, told the court that the application was not adversarial and hence ED’s opposition to letting his client vote was questionable. He contended that the argument made by the ED that the court could not have a discretion in the matter was a dangerous one.
He argued that because there was an embargo under Section 62(5) of the Representation of People Act, the legislators had been compelled to approach the court. Chaudhary said that Deshmukh was only seeking release for a short period to vote and the high court had the discretion to permit it.
Additional Solicitor General Anil Singh, representing ED, had opposed the pleas citing Section 62(5) of the Representation of People Act which the agency claimed, clearly barred the right to vote for prisoners and there was no question of the court using its discretionary powers.
Friday’s was the second occasion in a week when the court disallowed Deshmukh and Malik to grant temporary bail to them to cast their vote in an election.