malik: NCP’s Deshmukh, Malik not allowed to vote for RS | India News

MUMBAI: A special court on Thursday refused to allow NCP‘s Anime Deshmukh and Nawab Malik to be released from prison for a day to vote in the Rajya Sabha elections on Friday, sending them scrambling to the Bombay high court for relief.
Malik got an urgent hearing at 10.30am on Friday, while Deshmukh’s team will move in the morning.
The race for six Rajya Sabha seats from the state is tight with the ruling MVA, including NCP, and BJP set for a bitter contest.
Opposing the duo’s pleas, additional solicitor general Anil Singh for the Enforcement Directorate cited a section of the Representation of the People Act to underline his argument that prisoners do not have voting rights.
Accepting the pleas of additional solicitor general Singh, appearing for the ED, in two separate orders, special judge RN Rokade said: “In the case at hand, there is express provision under section 62(5) of the Representation of the People Act. In view of the provision, I am inclined to hold that the accused is not entitled to vote in RS elections… the accused cannot claim entitlement to get the facility to go at Vidhan Bhavan and vote.”
During the arguments, minister Malik’s lawyer Amit Desai drew parallels with then MLA Chhagan Bhujbal, who was allowed to vote in the presidential election in 2017 despite being in custody in a money laundering case.
The special judge said: “It is imperative to note that there is a difference between voting in a presidential election and RS elections. The presidential election is maintained by the Presidential and Vice Presidential Elections Act… There is no provisions under the Act to prohibit an undertrial from casting vote in the presidential election.”
The court added that there are divergent views of HCs on voting rights of undertrials, but it is well settled that the right to vote is not a fundamental right but a statutory one and subject to limitations.
On Wednesday, ASG Singh had said a person confined in prison cannot vote in any election. “The right to vote is a statutory right. If a right is given by the statute, it can be taken away by statute… We have to interpret the section as it is, in plain and simple language. If it says you cannot vote, you cannot vote,” he had said.
The court also refuted former home minister Deshmukh’s lawyer Abad Ponda’s submission that undertrial prisoners are excluded from the operation of section 62(5) of the RP Act. Both Deshmukh, MLA from Katol (Nagpur), and Malik, who represent Anushakti Nagar in the city, were arrested in money laundering cases in November 2021 and February 2022, respectively.
In Malik’s plea, Desai had also submitted that he was not confined in prison but was taking medical treatment in private hospital.
The court said: “It is relevant to note that the accused is still in judicial custody but shifted to a private hospital for medical treatment. Therefore, I am not inclined to accede to the submission that the accused is not confined in prison.”

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