Legislator in Jail Allowed to Vote in Elections with Court-Directed Security Measures

The court held that the arrested Member of the Orissa Legislative Assembly should be allowed to participate in the voting process for the Council of States elections while in jail custody. The court directed the government to facilitate the transportation of the petitioner to the voting location with adequate security on the election day and return him to jail after casting his vote. The court disposed of the Writ Petition with this direction, providing a free copy of the order to the State Counsel for compliance and granting an urgent certified copy upon application.

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Issues involved:
The issue involves the right of an arrested Member of the Orissa Legislative Assembly to participate in the voting process for the Biennial Elections to the Council of States, 2010 (Rajya Sabha Elections) while being in jail custody.

Judgment Summary:

Issue 1: Right to participate in voting process

The Petitioner, an elected Member of the Orissa Legislative Assembly, sought permission to participate in the voting process for the Council of States elections despite being in jail custody. The State Counsel objected, citing Section 62(5) of the Representation of People Act, 1951, and previous court decisions emphasizing that the right to vote in such elections is not an absolute constitutional right. However, the Petitioner argued that under Article 80(4) of the Constitution and the Proviso to Section 59 of the R.P. Act, 1951, he should be allowed to vote since the voting process is different from general elections. The Court held that as a Member of the Legislative Assembly, the Petitioner should be permitted to exercise his franchise by participating in the voting process for the Council of States elections.

Issue 2: Direction to facilitate participation

The Court directed the Secretary to the Government of Orissa, Home Department, to issue instructions to facilitate the transportation of the Petitioner to the voting location with adequate security on the day of the election. After casting his vote, the Petitioner was to be taken back to the jail where he was lodged. The Writ Petition was disposed of with this direction, and a free copy of the order was provided to the State Counsel for compliance. An urgent certified copy of the order was to be granted upon proper application.

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