The Uttar Pradesh home department recently ordered its prosecuting officers to challenge pleas in court from jailed legislators to attend Assembly sessions.
The move comes a week after two jailed UP MLAs applied for permission to vote in the Rajya Sabha elections. While one received permission from a lower court, which was stayed by the Allahabad High Court after the government challenged it, the other withdrew his plea.
“There was lack of clarity in this regard and thus majority of these applications were not challenged,” said Arvind Kumar, Principal Secretary (Home), who had issued the order to Director-General (Prosecution). “So we sought the opinion of the law department and based on this and previous order of the honourable High Court, we have asked the prosecuting officers to cite these rulings in cases so that the appropriate decision can be taken”.
The high court order that the government is citing is that which was passed on May 4, 2009, while deciding Shekhar Tiwari vs State of Uttar Pradesh. Tiwari, who was a BSP MLA from Auraiya Sadar Assembly Constituency, was lodged in jail in a murder case and had sought permission to participate in that year’s Budget session.
The court had ruled then that when the petitioner (Shekhar Tiwari) is detained in prison by lawful order, he cannot claim a writ of mandamus permitting him to participate in the proceedings of the Assembly.
The Opposition has already called the government’s move as unjust. “Bahumat ke adhar par tanashahi ho gaya hai…Hum apne MLAs ke liye kanooni larayi larenge (This is majoritarian authoritarianism… We will fight a legal battle for our MLAs),” said senior SP leader and Leader of opposition in Uttar Pradesh Legislative Assembly Ram Govind Chaudhary.
BSP MLA Mukhtar Ansari and Samajwadi Party MLA Hari Om Yadav were not allowed to vote just a day before the Rajya Sabha polls. Ansari, main accused in the murder case of BJP MLA Krishnanand Rai, a legislator from Sadar seat in Mau has been lodged in Banda jail since 2005. Yadav, who is MLA accused in an attempt to murder case, is at lodged in Firozabad jail since he surrendered on March 5.
Ansari, frequently seen during Assembly sessions, had received permission from a special judge in Ghazipur to participate in Rajya Sabha election. However, the state government challenged it in the Allahabad High Court citing that the benefit of sub-section (5) of section 62 of Representation of People Act-1951 do not apply to him.
Later, a petition moved by SP’s Yadav seeking permission to be brought to Lucknow to participate in Rajya Sabha polls was withdrawn.