The Bombay High Court on Thursday concluded hearing on pleas by arrested NCP leaders Nawab Malik and Anil Deshmukh - who are seeking release for a few hours on June 20 to vote in the Maharashtra Legislative Council (MLC) elections - and said that it will pass its verdict at 2.30 pm on Friday. A single-judge bench of Justice N J Jamadar on Thursday heard pleas filed by the two leaders. Senior advocate Amit Desai, representing Malik, argued that his client was not seeking release on bail but was merely seeking permission to be taken to cast his vote with an escort. He said Section 62 (5) of the Representation of the People Act does not prevent the High Court from exercising its discretion to pass an order to facilitate the process of voting for the applicant and such discretion is not taken away by any of the previous HC or Supreme Court judgments. He added that the courts do not ordinarily interfere in political processes but they lean in favour of allowing democratic processes to continue, except in cases where there are extraordinary issues including law and order problems, which is not the case with the present applicant. Therefore, he argued that the court must invariably exercise discretion in favour of fair political process and allow his client to cast a vote. Desai added that if the vote is invalid, the returning officer or election officer is competent to declare so but Malik's right to vote for MLC elections cannot be curtailed. He said there was a difference between an undertrial and a convict, and for an undertrial presumption of innocence cannot be forgotten. When the court says that the person is in prison due to his own conduct, then that conduct is of a convict and not that of undertrial. Senior advocate Vikram Chaudhari, representing Deshmukh, said that his client was not seeking the right to vote in prison but a few hours release to cast his vote. "It could have been an absolutely non adversarial case. It could have been a consent order. Why is the enforcement agency jumping to oppose this plea," Chaudhari argued. He added that the High Court has unfettered discretion to pass such an order Additional Solicitor General (ASG) Anil Singh, representing the Enforcement Directorate (ED), opposed the plea and said that there is "clear embargo" on the right to vote for prisoners as per Representation of People Act, therefore the question of vote on release cannot arise as applicants are not entitled to vote. Justice Jamadar queried,"Let us look at it from a different perspective.Election to MLC is an indirect method of election. In the present case, would it not deprive citizens of his (applicant's) constituency from (indirectly) taking part in the MLC elections? What the applicant did was in his personal capacity. But because of his personal conduct, people in his constituency are being deprived?" ASG Singh responded that the question was not whether the applicants are the "voice of people" so that it might affect the people who have elected him. The question is of the person's conduct which led him to prison," he said. He added that the law contemplates embargo on voting which also includes MLC polls and the applicants could argue the same if they challenge the validity of the provision of law, but not in present plea. After hearing submissions, the bench concluded the hearing and reserved its orders, which it will pronounce on Friday. Last week, the two NCP leaders could not secure a nod from either the special court or High Court to vote in the Rajya Sabha elections held on June 10.
