Rajya Sabha polls: Nawab Malik, Anil Deshmukh pleas for permission to vote rejected, both move Bombay HC

After Malik’s lawyer sought an urgent hearing, the HC said it will hear the plea on Friday morning. Deshmukh’s lawyer, however, did not seek an urgent hearing.

Earlier in the day, Special Judge R N Rokade of the PMLA court, while rejecting the pleas of the two leaders, said that they are “not entitled to vote” in the Rajya Sabha elections and “cannot claim entitlement” to get the facility to go to Vidhan Sabha to vote.

On Wednesday, the PMLA court had heard arguments from lawyers of Malik and Deshmukh, both currently in judicial custody in connection with separate money laundering cases lodged by the Enforcement Directorate. It had also heard arguments by Additional Solicitor General Anil Singh, who claimed that prisoners have no voting rights as per Section 62(5) of the Representation of People Act.

According to the section, no person lodged in prison can vote. The court held that the section provided for provisions as per which Malik and Deshmukh are not entitled to vote in the Rajya Sabha elections.

Lawyers for the two accused and the ED both referred to two HC judgments with differing views on whether undertrials are entitled to vote in Rajya Sabha elections.

The special court, referring to a Supreme Court judgment while dismissing their pleas, said: “It is true there are divergent views of the honourable high courts in respect of voting rights of undertrials. It is well settled that the right to vote is not a fundamental right but a statutory right and subject to limitations…”

The two leaders had submitted that as sitting MLAs, they are members of the electoral college and are desirous to exercise their franchise. They had sought to be released for a day only for the purpose of voting and to be taken to the Vidhan Sabha with police escort at their own expense.

Malik had also said that since there were seven candidates for six seats, it was a “contested” election and his party would be “prejudiced” if he was not allowed to go to the Vidhan Sabha.

The two had further said that they wanted to exercise their duties towards their constituencies and also referred to courts allowing prisoners to be released for purposes like lighting the pyre of a parent or giving away a daughter in marriage. They also referred to NCP leader Chhagan Bhujbal being allowed to vote in the 2017 Presidential elections while he was in custody.

“It is imperative to note that there is a difference between voting for Presidential elections and Rajya Sabha elections. The Presidential Elections Act is governed by the Presidential and Vice Presidential Elections Act, 1952… there is no provision under the Act to prohibit an undertrial to cast a vote in the Presidential elections,” the special court said. The court had on Wednesday reserved its order and pronounced its decision around 3 pm on Thursday, following which Malik and Deshmukh moved HC.