Thread by @barandbench

Mumbai Court is hearing plea by Maharashtra MLAs Nawab Malik and Anil Deshmukh seeking one day bail to cast vote in Rajya Sabha elections.

#NawabMalik #MumbaiCourt

Amit Desai for Malik: This is about a limited issue of going to vote for couple of hours on June 10.

Desai: To oppose they have given a short reply... PRA says cannot vote.

The question is for the court to exercise a discretion...For the discretion we are saying that he is technically not in prison... He is in hospital..

Desai: The question is whether the court is barred from exercising it's discretionary power under 62(5) of RPA ... Pls see the act...

Desai: My issue is of biennial election not general election... Even if an accused is accused of crime... But the point is "if" the accused is in prison...
I have a right to vote. I might have n number of cases against me...

Desai: But it is only if a person is in prison that he cannot vote.. that is why I am saying give me an escort... I will go and vote... The court can use it's discretion...

Desai: There are other factors... The court can say law and order problem, or give any other reason to not allow to vote...

Desai: There cannot be a preventive detention from preventing a person from exercising a constitutional right to vote...That is illegal.

Desai: Let the illegality not happen from the shoulders of the court...

There has to be a differentiation between a person who is in prison and a person who is in hospital...

The 62(5) clearly says prison... Malik is in judicial custody but he is not in prison.

Desai: Disqualification from voting arrises 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 as Malik is not convicted.

Desai: Malik is saying that there is a presumption of innocence...And he can prove that he is innocent... He should just be allowed to fulfill his duty...

Desai: Pls understand the difference between duty and right... I am coming here to fulfil my duty towards my people...

Desai: This has serious consequences if elected members are slapped with fake FIRs and then they are not allowed to vote under 62(5) ... These kind of things do happen... This will be hurt the democratic values if elected members cannot do their duty...

Desai: On the delay, Friday was the last date for withdrawing candidature... It was only on Friday that everyone realised that there will be a contest... That is why it was filed this late... Do not misunderstand us.

Desai: Malik is a sitting MLA... even now a cabinet minister...The court should not become a basis for depriving a franchise... He is a proxy for the people of his constituency and has a duty.

Desai concludes his submissions.

Sr Adv Abad Ponda commences arguments for Deshmukh.

Ponda: Once you are in custody, you cannot vote seems to be their argument. It doesn’t apply to all cases, just applicable to certain categories. Kindly see 62(5).

Ponda: there are certain instances which do not include me. Then there is otherwise.

Otherwise according to me includes a concluded trial, or concluded chapter proceedings.

Ponda: Where do I get this sentence, transportation, inability to pay fine or bomd, where do I get this from? From the statutory provision.

Ponda: Transportation of prisoners act, see section 3. When a person is confined in prison and four contigencies, fine comes only after concluded proceedings.

The section specifies when a person is confined in prison, and NOT in custody.. that is a different definition in prison manual.

Ponda: There is section 29 of another 1900 Act.

Ponda is reading out case laws which have interpreted “persons who are confined in prisons”.

Ponda: 62(5) will not apply to an undertrial convict in judicial custody.

Ponda: I am placing my interpretation on record.

Ponda: What is the meaning of the word otherwise? The answer is given in SC judgment of Nakul Chandra, which specifies kinds. Sentence of imprisonment or transportation or inability to pay fine or bond.

The section would have said no right to prisoners and finished it.

Ponda: Why did SC uphold 62(5)? Because of an argument - see para 3 of the judgement.

Ponda: Today this court is not reuired to go into other aspects.

Ponda: The court can help me out of confinement on either of these conditions:

- Grant me bail under 45 PMLA with sureties;
-Or release me for a day on account of sickness etc.
-Or release me from confinement with escorts.

Ponda: It is a question of even them
Not contending.. I see no politics in reply, I see a legal objection in the reply.

Ponda: If that makes my application sterile, then that is different.. but I do not know how 62(5) will apply when charge is not framed and when they are not in police custody.

You are convicted post trial, and then you are confined in prison. It is not custody.

Desai: While courts and legislatures are ensuring that there is no criminal elements in politics. Supreme Court has differentiated between a convict and person facing a case.

A person who has criminal antecedents is permitted to stand for election which is on a higher footing, but is not permitted to go an cast vote?!

Desai: There is a democratic process and that has to be considered.

Desai and Ponda conclude.

ASG Anil Singh arguing for ED

ASG: please see preamble of Representation of People’s Act

ASG: Kindly see, directly, 62(5) and then I will come to the submission and then cite my cases and then distinguish the cases submitted by Desai.

ASG: Kindly see, the exception is carved out.

62(5) - no person shall vote at ANY election, if he is confined in prison, he cannot vote in any election of RS.

ASG: It is wide enough, if he is in imprisonment or transportation or otherwise.
My learned friend said, I will specify what is otherwise.

ASG: If a person is in police custody he cannot vote, if he is in judicial custody then he cannot. Then once he is convict then he can vote.

ASG: The person who is in prison, he cannot vote, even if he is undertrial.
62(5) will be applicable for person in prison for any reason.

ASG: There is curtailment in movement, as per SC judgment, hence there is no question of vote.

In all judgements cited, right to vote is constitutional but shaped by representation of people act. So the act has to be followed.

ASG: We have to see the section, what it says, plain and simple.

The interpretation is arbitrary or unreasonable, cannot be raised here.

There are appropriate remedies for that, and those can be invoked. But the section is clear.

ASG: My submission is that if you go by the plain and simple language, you have no right to vote.

ASG is citing judgments.

ASG: (while reading the judgments): So, it is observed that right to vote is not fundamental right, it is a statutory right.

ASG: I don’t know from where did they get that rules do not apply to undertrials, it is not mentioned anywhere.

ASG: 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.

ASG: When the applicant is in prison it is because of his own conduct, then they cannot ask for such privileges.

ASG: As for the contention that standing for election is allowed and not voting, right to contest is separate right, right to vote is different, those are different things and we are not concerned with those things.

ASG: The language of the section is plain and simple.

There is one final judgment to cite.

ASG: We cannot change the section, we cannot carve something not there. We have to by the language of the section. The section - otherwise - obviously includes undertrial, it cannot include anything else but undertrial.

ASG: We cannot add, delete while interpreting section, that is the Law! And the debators have thought about this while framing. There was a challenge to the law before which was dismissed. Nothing stops them from challenging again.

ASG: Their application says medical issue is not raised. But how can medical issue even be raised here? There is no question of granting bail. For escort or sureties. To say rigors of 45 will not apply.. why will it not apply!?

ASG: if you sre seeking bail, 45 applies. But you have sought for something else, that is not your applicaiton.

ASG: will milords take a break?

Desai: Biological clock is asking for a break! Laughs.

ASG: I don’t know where Mr. Desai gets his energy from, but we need some break..

Court: We will resume at 3.15 pm

Hearing resumes.

ASG continuing his submissions.

ASG: I have made my submissions, I will now respond to their contentions.

ASG: The SC judgments are clear that even if it is Rajya Sabha elections, there is no right to cast vote.

ASG: Their contention was that voting is a constitutional right.

But the SC contentions say that is statutory right, not a fundamental right. Constitutional but shaped by the Representation act.

ASG: You cannot use 10 reasons for releasing from prison.

If there are medical reasons, apply for medical bail, if there is regular bail then say so.

But there is no question of contending that rigours of 45 will apply

ASG:In conclusion, your submission is you allow me to cast vote either by releasing me for a day or send me with escort.
I am saying, in law, there is a clear bar in casting vote in RS election when in prison, whether he is undertrial or convict or in transportation or otherwise.

ASG: The contention that he is undertrial and hence excluded cannot be made. He is undertrial and he is in prison. Whether there can be any order, that cast vote even though there is prohibition under the Act?

ASG: My submission is considering the facts of the case, the legal position as it stands, the judgment of SC, preamble, and sec 62(5) permission to vote cannot be granted. Raise the point of reasonability of the section before the appropriate forum.

ASG: Please look at definition of election. Section 51 of the Representation of People Act.

ASG concludes his submission.

Desai: We are before this Court because my client is in custody. Hence I have to come to this court for any permission whatsoever. When my client was unwell, your honour sent him for treatment and are monitoring the same.

Desai: What is the problem here? We are only saying, I have a duty.. that is different from right, to cast my vote.

I am conscious of what I am submitting. It is my duty to give away my daughter in marriage, it is my duty to my parents to light their pyre after they die.

Desai: I am not here to exercise my right, I want to exercise my duty.

This is a matter between the Court and me.

If I say that your honour decides what happens to me for 5 hours, then your honour calls me to court, I say I am unwell, and then send me to hospital and call me back. That is between the court and me, once I am in your custody.

Desai: I have come transparently to this court. There is no game here, that I have come for something else and I want to do something else.

Desai: Not one observation or submission as to why I cannot exercise my duty.

Desai: He cited a few judgements on how discretion can be exercised.

It is the discretion that is in the courts hand for cases where there are MPs and MLAs involved.

Desai: 62(5) is about right to vote in election under an act.

Desai: 62(5) doesn’t talk about attending sessions of parliament..

Desai: there are 6 types of cases we have dealt with in these judgments today. The facts of those cases are different from this case.

Desai: Today what is sought to be argued is virtually tell the court that the action under 62(5) is barred based on validity without even letting me act.

Desai: There are serious issues about applicability of 62(5). But if milords do not permit me to cast vote, then my right is prejudiced, my party is prejudiced.

Desai: This is a case where the vires of 62(5) was challenged in SC in PIL cited by ASG. The PIL was dismissed, but there is no observation on 62(5).

There is another order of the Allahabad HC which was an ex-parte interim order. How can such an order be relied upon?

ASG: the applicant was not allowed to vote, that is important.

Desai: But it is per incuriam. How can such an interim order be submitted as judgment?

Desai: do I have a statutory right to sit in prison and vote? I am asking the court to exercise its discretion.

I will exercise my right when the court permits me, if I am in prison. There is no if here because I (Malik) am not in prison, I am in hospital.

Desai is now distinguishing the judgements submitted by ASG.

Desai: We cannot just pick up judgments and say that voting is barred. The facts and individual cases have to be seen.

Desai: I am a sitting member of the cabinet and I have refused to step down because I am innocent. If I am member of the cabinet, and discretion is to be exercised, why cannot I exercise my vote? It is a political process and why should courts get in the way of the process?

Desai cites instance of NCP leader Chhagan Bhujbal being granted permission by the PMLA Court. His co-accused was permitted by High Court.

Desai: I am not asking for the court’s permission to go a vote, I am asking for leave to go to Vidhan Sabha. I am voting for my conscience.

Desai: There was discretion used in Bhujbal’s case and that was never challenged. I am showing instance where the court exercised discretion.

Desai: Rule of law is to be maintained. If they are found innocent then why deprive them of their right, In this battle between State and accused. I can give illustrations on exercise of discretion. Different types of proceedings in parliament.

Desai: Courts have to decide these issues on case to case basis. There is no legal bar.

Desai: I am entirely in your honour’s discretion. If your honour you can send me on bail, or keep me in house custody.

Desai (from a judgment of ASG): There is a distinction between general elections and Rajya Sabha polls. As the issue was of providing polling booths in prison in general elections and thus the voting is not allowed there. But this is not general elections.

Desai: If I am disqualified from voting that is one situation, but I am asking for the Court to create a situation where I am not in prison.

There is a serious problem, the presumption of innocence is not considered.

Desai: I should be allowed to cast my vote, milords have to help me create a situation where I can cast my vote.

Desai: I am only saying that this court has a discretion to release or not and not on the point of voting right.

Desai concludes his submissions.

Ponda: I will take only 5 mins, I realise there is time constraints.

ASG: You can continue till tomorrow!

Desai: If we are given interim bail, we will continue till tomorrow!

Ponda: There are judgments submitted where leave was granted to be released from prison for various reasons. Either all can be accepted or none. If not, there is two judgments which are only on 62(5).

Ponda: The meaning of confinement of prison, is well defined under the several statutes I have mentioned.
Those categories are clarified.

Ponda concludes.

ASG: I will have to answer all over again. The code of conduct is, what is argued in rejoinder, further judgments are submitted. I will need time to argue on that.

Desai: I will withdraw all judgments..

ASG: No no, that cannot be.

Desai: Please hold yourself and do not make allegations on our conduct.

Court: You want to argue, you argue.

ASG: The main reading of the language of the section is important. The law states that you have no right to vote. Question of discretion or indulgence will arise only if the court has decided that you have a right to vote.

ASG: if your lordships has seen all judgments, what is the observation, what is the law decided, that is what is to be seen. That is what I have shown the court.

ASG: the conduct of the prisoner has led to his restriction of movement.

As for Nawab Malik, kindly see the order of the High Court on his plea challenging his remand.

ASG: All these judgements cited by my learned friend in rejoinder will apply to facts of present case and once these have been referred to, the inference is that there is a clear prohibition or embargo on voting.

ASG: If discretion is to be considered then conditions of section 45 have to be considered.

ASG concludes his submissions.

Court reserves orders.