A special court in Mumbai on Wednesday reserved till Thursday its order on the bail pleas of former Maharashtra home minister Anil Deshmukh and state minister Nawab Malik seeking the one-day relief to cast their votes in the June 10 Rajya Sabha elections.
The Enforcement Directorate, which had opposed the pleas of Deshmukh and Malik saying prisoners don't have the voting rights under the Representation of the People Act, said a person confined in prison cannot vote in any elections, "whether he is under sentence or an undertrial that doesn't make a difference".
Deshmukh's lawyer argued that let the legislature decide on the floor (about his vote) and that he can go under escort.
Malik's advocate also told the court that the validity of the vote can be decided by the returning officer.
Deshmukh and Malik, both senior Nationalist Congress Party leaders, are currently lodged in jail in connection with different money laundering cases.
The duo had last week filed applications seeking temporary bail before special judge R N Rokde.
On Wednesday, all the sides completed their arguments for and against the bail.
Arguing for Deshmukh, advocate Abad Ponda submitted, "Do I not have the right to vote? I see no politics in the reply (referring to the ED's response). I see legal objection."
He further said there is a difference between a convict, who is confined, and an undertrial who comes out for remand, and court proceedings. Confinement starts after conviction.
On the ED argument that prisoners don't have the voting rights under the Representation of the People (RP) Act, Ponda said, "Let the legislature decide on the floor but let me (Deshmukh) go there".
He can go under escort to the particular place (to the voting spot) and the rest can be done by others (concerned department), Ponda said.
Advocate Amit Desai, appearing for Nawab Malik, submitted, "I have not come here to enforce my rights, but my duty....I'm in honour custody and your honour may do as he pleases."
Desai contended that his client has come to the court "transparently and wishes to discharge his duty towards his constituency".
He too said that the validity of the vote can be decided by the returning officer.
"If I'm not allowed...my ability to cast a vote fails, then I'm prejudiced, my party is prejudiced ," Desai said.
The lawyer also told the court that Malik is still a minister (in the state government).
"Since I have not resigned, it means there is a good belief in my government about my innocence," the lawyer said.
Opposing the applications of Deshmukh and Malik, Additional Solicitor General Anil Singh said that as per provisions, a person confined in prison cannot vote in any elections, whether he is under sentence or an undertrial that doesn't make a difference.
The Right to Vote is a statutory right. It is the constitutional right shaped by the Act (the RP Act), he said.
"We have to interpret the section as it is in the plain and simple language. If it says you cannot vote, you cannot vote. Whether it's discriminatory is a different issue and its validity can be challenged," Singh said.
"When you are in prison it's because of your conduct.. you cannot claim all these rights," the ASG added.
Deshmukh was arrested in November 2021 by the ED.
"Being a standing MLA, the applicant (Deshmukh) is a member of the electoral college for the election of members to the Rajya Sabha. The applicant is desirous to exercise his franchise and cast his vote," Deshmukh's bail application had said.
The ED had told the special court that Deshmukh is the main accused in the money laundering case registered against him and is currently in judicial custody after being arrested in November last year.
As per 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 officers.
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.
The court's order on Thursday will be keenly watched as every vote is crucial for the Shiv Sena-led Maha Vikas Aghadi, of which NCP is a constituent, to get the Sena's second candidate -- Sanjay Pawar -- elected in the RS polls.
After more than two decades, the state will witness a contest in the Rajya Sabha polls as there are seven candidates in the fray for the six seats.
The ruling Shiv Sena has fielded two candidates, its MVA allies NCP and Congress have nominated one candidate each, while the opposition BJP has put up three candidates.
The contest lies between BJP's Dhananjay Mahadik and Shiv Sena's Sanjay Pawar.
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