Undertrial Also Barred From Voting As Per Section 62(5) RP Act; Allowing Prisoners To Vote Doesn't Strengthen Democracy : Bombay High Court

Justice NJ Jamadar held that democratic principles are strengthened when the electoral process remains unblemished and all those participating in the process are persons of integrity. Arresting or stopping criminalization of politics was one of the objects for introducing the bar on an imprisoned person from voting under subsection (5) of Section 62 of Representation of the People's Act, the court said.

"It would be suffice to note that the concept of 'democracy' transcends 'electoral democracy'. Purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles…..I am, therefore, not inclined to accede to the broad proposition that permitting the persons (who are otherwise not qualified to vote in the election) strengthens the democracy," he added.

The court passed the order on an application filed by the NCP leaders seeking release for a couple of hours on execution of a bond to cast their vote in upcoming Maharashtra Legislative Council elections, on Monday. The two are in judicial custody in separate money laundering cases being investigated by the Enforcement Directorate.

The ED represented by ASG Anil Singh resisted their applications citing bar under section 62(5) of the Representation of the People's Act that prohibits a person confined in prison from voting in an election.

During the arguments Senior Advocate Vikram Chaudhri for Deshmukh submitted that the accused had a fettered right to vote but the court had an unfettered discretion to remove the embargo on voting.

However, the judge said "It is trite, discretion has to be exercised within the bounds of law. Conversely, there is no unfettered discretion, even in the Courts, to validate a course of action, which the law proscribes."

Senior Advocate Amit Desai, instructed by Rashmikant and Partners for Malik submitted that there wasn't a complete bar on voting under 62(5) of the RP Act and only if the person was confined in prison, could he be restrained from voting. But this physical defect could be removed by granting temporary bail to vote.

In the order, Justice Jamadar agreed that the court can exercise it discretion if the accused was deserving. For example, he may have been arrested only to restrain the person from casting his vote. But both the NCP leaders have been in prison for a considerable period and they didn't seem to be arrested with the purpose of restraining them from casting their votes, he said.

Only last week, the Special PMLA court refused permission to both NCP leaders, Anil Deshmukh and Malik from being temporarily released to cast their vote in the Rajya Sabha Elections on June 10, 2022.

According to the ED, Deshmukh had misused his position as state home minister and collected Rs 4.70 crore from various bars in Mumbai through some police of officers. He was arrested in November 2021,

Malik was arrested by the ED on February 23 this year in a money laundering case linked to the activities of fugitive gangster Dawood Ibrahim and his aides.

Case Title: Mohammad Nawab Mohammad Islam Malik @ Nawab Malik versus The Directorate of Enforcement and Anr. 

 Anil Vasantrao Deshmukh versus The Directorate of Enforcement and Anr.

Citation: 2022 LiveLaw (Bom) 220

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