Read Order: MOHAMMAD NAWAB MOHAMMAD ISLAM AND ORS Vs. THE DIRECTORATE ENFORCEMENT AND ORS. 

Mansimran Kaur

Mumbai, June 20, 2022: While rejecting the pleas of Nawab Malik & Anil Vasantrao Deshmukh to vote in MLC Elections, the Bombay High Court has observed that the concept of ‘democracy’ transcends ‘electoral democracy’ as the purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles.

While considering the present applications were preferred by the members of the Maharashtra Legislative Assembly seeking relief to be granted by this Court to the applicants to enable them to vote in the Maharashtra Legislative Election Council being conducted on June 20, 2022 by releasing them, the Bench of Justice N.J. Jamadar further observed that one of the objects of the prohibition envisaged by sub-section (5) of Section 62  of the R.P. Atc, 1951 is stated to be arresting the criminalization of politics.

Factual background of the case was such that the applicant- Nawab Malik was in custody for the offence punishable under Section 3 of the Prevention of Money Laundering Act, 2002. Another applicant- Anil Vasantrao Deshmuk was in custody for commission of the offence punishable under Section 3 of the PMLA Act.  The applicants were seeking to exercise their constitutional right to vote in Rajya Sabha Biennial Elections in the capacity of the members of Maharashtra Legislative Assembly.

The applicants claimed that they have a constitutional duty to cast vote in the said election. The fact that the applicants were arraigned with the aforesaid offence, couldnot abstain them from discharging their constitutional duty, the applicant submitted.

The Court observed that sub- section (5) of Section 62 stipulates that no person shall vote at any election if he is confined in person, is not absolute in nature. The Court further observed that the definition of ‘election’, extracted above, indisputably the election to the 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. 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, added the Bench.

At this stage, reliance was placed on the case of Anukul Chnadra Pradhan Vs. Union of  India wherein constitutional validity of subsection (5) of Section 62 was upheld. 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 this constitutional right can, by no stretch of imagination, be said to be absolute, noted the Court.

It was also opined by the Bench that 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 elector. The Bench also remarked, “If a full play is given to the provisions contained in sub-section (2)(d) and Section 62(5) of the R.P.Act, 1951, an inference becomes inescapable that a person in custody, either post conviction or during the course of investigation or trial, is prohibited from casting vote in any election.”

Thus in light of the aforesaid observations, the Court opined that the alternative prayer to exercise the discretion in order to remove the embargo and allow the applicants to cast vote while being in custody was meritless. 

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