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2022 (6) TMI 983 - HC - Money LaunderingRight to vote in the Maharashtra Legislative Council Election - alternatively seeking permission to Applicant to go to Vidhan Bhavan under medical escort, the charges of which will be borne by the Applicant to enable him to vote in the Elections for Maharashtra Legislative Council - HELD THAT - From the phraseology of the definition of election , indisputably the election to State Legislative Council is regulated by the provisions of the R.P.Act, 1951. Sub-Section (5) of Section 62 contains an interdict against the exercise of right to vote at any election by a person who is confined in prison. Indubitably, the Parliament has not made any distinction, in the matter of prescribing the aforesaid disqualification on account of being in custody on the basis of the bodies, to which election is held. The proviso, however, excludes a person who has been detained in custody as a preventive detention measure from the said bar. The issue was sought to be raised before the Division Bench of the Delhi High Court in the case of PRAVEEN KUMAR CHAUDHARY ORS. VERSUS ELECTION COMMISSION OF INDIA ORS. 2020 (2) TMI 1643 - DELHI HIGH COURT . Following the pronouncements in the cases of ANUKUL CHANDRA PRADHAN ADVOCATE SUPREME COURT VERSUS U.O.I. 1997 (7) TMI 651 - SUPREME COURT , and S. RADHAKRISHNAN VERSUS UNION OF INDIA (UOI) AND ORS. 1999 (8) TMI 1013 - SUPREME COURT , and a Division Bench decision of the Delhi High Court in the case of MANOHAR LAL SHARMA VERSUS UNION OF INDIA 2014 (2) TMI 1410 - DELHI HIGH COURT , the Delhi High Court reiterated that sub-section (5) of Section 62 is constitutionally valid - It was held that Section 62(5) is constitutionally valid. The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved as stated hereinabove. Indisputably, the Applicants profess to exercise their right to vote in the capacity of the Members of the Legislative Assembly, which constitutes the electoral college for electing the Members of the Legislative Council under Article 171(3)(d) of the Constitution of India. The claim to exercise of this constitutional right can, by no stretch of imagination, be said to be absolute. The Parliament, by law, has regulated the elections to the Legislative Councils as well, under the R.P.Act, 1951. Section 16 of the Representation of the People Act, 1951, thus provides that the Governor shall call upon the members of the Legislative Assembly of the State to elect members in accordance with the provisions of this Act, and all the rules and orders made thereunder - The situation which thus obtains is that even on the premise that the Applicants have constitutional right to exercise and duty to discharge in the capacity of the members of the Maharashtra Legislative Assembly, the same are regulated by statutory prescriptions. 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. Whether the Court would be justified in removing the embargo by either directing the release of the Applicants on temporary bail or permitting the Applicants to cast vote, under escort? - HELD THAT - What the Applicants want the Court to do is to order release of the Applicants to cast vote in the face of an express prohibition. To this end, the Applicants appeal to the judicial discretion of the Court. The edifice of this appeal is rested on the proposition that participating in voting by the Applicants would strengthen the democracy - It would be suffice to note that the concept of democracy transcends electoral democracy . Purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles. One of the objects of the prohibition envisaged by sub-section (5) of Section 62 is stated to be arresting the criminalization of politics. The Court may be confronted with a situation, where despite the rigors of law, to uphold the constitutional norms and democratic values, the Court may be required to summon the inherent powers to remedy the malady. The Court cannot be said to be completely denuded of the authority to exercise such jurisdiction. An illustrative case would be, where on the eve of the election, a number of members of the electoral college are put behind the bars with a view to deprive them of the opportunity to vote in the election so as to achieve a desired result. In such a situation, though the Section would be unassailable, yet the Action thereunder, is susceptible to challenge and correction in exercise of appropriate jurisdiction. 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. In the case at hand, the Applicants have been in custody since long. No such motive of putting the Applicants behind the bar so as to prevent them from participating in the election process can be attributed, at least, at this length of time - Application dismissed.
Issues Involved:
1. Grant of bail to enable voting in the Maharashtra Legislative Council Election. 2. Legal interpretation of Section 62(5) of the Representation of the People Act, 1951. 3. Constitutional duty and statutory right to vote. 4. Judicial discretion in overriding statutory prohibitions. Detailed Analysis: 1. Grant of Bail to Enable Voting in the Maharashtra Legislative Council Election: The Applicants, members of the Maharashtra Legislative Assembly, sought bail to vote in the Legislative Council Election. They argued that their constitutional duty to vote should not be impeded by their incarceration. The Court noted that the Applicants were in custody under charges of money laundering and had previously been denied bail by the Special Judge, PMLA. 2. Legal Interpretation of Section 62(5) of the Representation of the People Act, 1951: Section 62(5) prohibits any person confined in prison or in lawful police custody from voting in any election, except for those under preventive detention. The Applicants contended that this prohibition was not absolute and that the Court could exercise discretion to allow them to vote. However, the Court highlighted that the Supreme Court had upheld the constitutionality of Section 62(5) in Anukul Chandra Pradhan v. Union of India, emphasizing that the classification between incarcerated individuals and others was reasonable and aimed at preventing criminalization of politics. 3. Constitutional Duty and Statutory Right to Vote: The Applicants argued that their right to vote, although statutory, had been elevated to a constitutional level, as noted in Rajbala v. State of Haryana. They claimed that preventing them from voting would undermine democratic principles. The Court, however, maintained that the statutory prescriptions under the R.P. Act, 1951, governed the exercise of voting rights, and the prohibition in Section 62(5) applied regardless of the nature of the election. 4. Judicial Discretion in Overriding Statutory Prohibitions: The Applicants urged the Court to exercise discretion to permit them to vote, either by releasing them on temporary bail or allowing them to vote under escort. The Court rejected this, stating that judicial discretion must operate within the bounds of law. It emphasized that the prohibition in Section 62(5) was explicit and unambiguous, and the Court could not override it to allow voting by those in custody. The Court also noted that exercising discretion in this manner would contravene the statutory prohibition and undermine the legislative intent to maintain the purity of the electoral process. Conclusion: The Court concluded that the applications did not merit acceptance and rejected the requests for bail or permission to vote under escort. The judgment underscored the importance of adhering to statutory provisions and the limited scope of judicial discretion in the face of explicit legislative prohibitions.
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