TaxTMI 
TaxTMI 
2022 (6) TMI 983
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.... 1. The Applicants who are the members of the Maharashtra Legislative Assembly, have preferred these Applications seeking, inter alia, the following reliefs : "(a) That this Hon'ble Court be pleased to grant relief to the Applicant to enable him to vote in the Maharashtra Legislative Council Election being conducted on 20th June, 2022 from 9 am to 4 pm by releasing him on personal bond with sureties or on such other terms and conditions as this Hon'ble Court may deem fit; (b) Alternatively, this Hon'ble Court be pleased to permit the Applicant to go to Vidhan Bhavan under medical escort, the charges of which will be borne by the Applicant to enable him to vote in the Elections for Maharashtra Legislative Council being conducted on 20th June, 2022 from 9 am to 4 pm on such terms and conditions as this Hon'ble Court may deem fit;" 2. The background facts necessary for determination of these Applications are few : 2.1 The Applicant - Nawab Malik is in custody since 23rd February, 2022 in connection with ECIR/MBZO-I/10/2022 for the offence punishable under Section 3 of the Prevention of Money Laundering Act, 2002 ('PMLA). 2.2 The Applicant - Anil Va....
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....A 1021 of 2022 and the Mr. Anil C. Singh, learned Additional Solicitor General appearing for the Respondent No.1, at length. 6. Since by and large, there is no controversy on facts, the learned Senior Advocates have canvassed the submissions on legal propositions, especially the nature of the prohibition against the exercise of the right to vote under Section 62(5) of the Representation of the People Act, 1951 ('R.P.Act, 1951'). 7. Before adverting to the submissions canvassed across the bar, it may be apposite to extract the relevant provisions of the R.P.Act, 1951, as they would assist the Court in appreciating the submissions in a better perspective : Section 2(d) defines "election" as under : "election" means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislative of a State other than the State of Jammu and Kashmir; Section 16 of the R.P.Act, 1951 provides for issue of notification for biennial election to a State Legislative Council. It reads as under : "16. For the purpose of filling the seats of the Legislative Council of a State retiring on the expiration of their term of....
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....ons, Mr. Desai, learned Senior Advocate, submitted that sub-section (5) of Section 62, which declares that no person shall vote at any election if he is confined in prison, does not provide an absolute bar. Comparing and contrasting the provisions in sub-section (2) to (4) of Section 62 with sub-section (5), an endeavour was made by Mr. Desai to draw home the point that, in contradistinction to sub-section (2) to (4), the embargo in sub-section (5) is not absolute. 9. As a second limb of this submission, Mr. Desai strenuously urged that the person in custody may be prevented from exercising the right to vote, but the Court is not precluded from exercising the discretion to remove the embargo by permitting the person in custody to cast the vote. 10. Laying emphasis on the second proviso to sub-section (5) of Section 62, Mr. Desai submitted that there is no prohibition for contesting the election while a person is incarcerated which, in a sense, is a relatively higher right than that of casting vote. But a person is prevented from exercising the right to vote for the reason that he is in custody. This dichotomy is required to be resolved by a harmonious construction. Mr. Desai ....
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....l bodies, it is not open for the Applicants to urge that the Courts still would be justified in exercising the discretion, which is in teeth of express statutory provisions. Since the R.P.Act, 1951 is a complete Code in itself, there is no element of discretion left in the Courts, submitted Mr. Singh. Even the alternative relief of permitting the Applicants to cast vote, under escort, is unworthy of countenance as it would amount to permitting the Applicants to achieve the result indirectly, which they cannot do directly. 14. Mr. Singh laid stress on the proposition that the right to vote is a statutory right. If the statute can provide such right, the same can be legitimately taken away by the statute. Disqualification incurred by the Applicants is brought about by their own acts and conduct. Therefore, the Applicants cannot be heard to say that in order to advance the democratic principles, they be permitted to cast the vote which they are otherwise prohibited by law. 15. I have given my anxious consideration to the aforesaid submissions. From the phraseology of the definition of 'election', extracted above, indisputably the election to State Legislative Council is regulate....
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....ection, but this restriction does not apply to a person subjected to any kind of preventive detention. 7. The learned counsel, Shri Sachar argues that persons in preventive detention cannot be classified separately. That by itself would not result in the invalidity of whole of sub-section. (5), but can affect the validity only of the proviso therein. The challenge in the present case is not merely to the proviso, but to the whole of sub-section (5). This argument does not, therefore, advance the petitioner's case. However, for the purpose of the present challenge, it is sufficient to say that preventive detention differs from imprisonment on conviction or during investigation of the crime of an accused which permits separate classification of the detenus under preventive detention. Preventive detention is to prevent breach of law while imprisonment on conviction or during investigation is subsequent to the commission of the crime. This distinction permits separate classification of a person subjected to preventive detention. 8. There are other reasons justifying this classification. It is well known that for the conduct of free, fair and orderly elections, the....
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....lcomed, as sub-serving a great constitutional purpose. We are in respectful agreement with the view expressed by the three Judge Bench in Anukul Chandra Pradhan's case (supra) and are not persuaded to take a different view. This writ petition, therefore, fails and is dismissed. No costs." 18. The issue was again sought to be raised before the Division Bench of the Delhi High Court in the case of Praveen Kumar Chaudhary & Ors. V/s. Election Commission of India and Ors. W.P.(C) 2336 of 2019 dt. 11th Feb. 2020. Following the pronouncements in the cases of Anukul Chandra Pradhan (supra), and S. Radhakrishnan (supra), and a Division Bench decision of the Delhi High Court in the case of Manohar Lal Sharma V/s. Union of India (2014) SCC Online Del. 570, the Delhi High Court reiterated that sub-section (5) of Section 62 is constitutionally valid. The conclusion in paragraph No.13 reads as under : 13. In view of the aforesaid discussion, we hold that Section 62(5) is constitutionally valid. The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved as stated hereinabove.....
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....der attack in this writ petition, the question arose regarding the true nature of the two rights of the citizen - "right to vote" and "right to contest" viz. Whether they are statutory right or constitutional right ? 95. A three-judge Bench in People's Union for Civil Liberties V/s. Unionof India (2003) 4 SCC 399 examined the question regarding nature of "right to vote". The learned Judge P.V.Reddi, in his separate opinion, which was concurred by D.M.Dharmadhikari, J. examined this question in great detail and in express terms, answered it holding that the "right to note" is a constitutional right but not merely a statutory right. We are bound by this view taken by a three-judge Bench while deciding this question in this writ petition." 21. The aforesaid submission, in my considered view, does not advance the cause of the Applicants. Indisputably, the Applicants profess to exercise their right to vote in the capacity of the Members of the Legislative Assembly, which constitutes the electoral college for electing the Members of the Legislative Council under Article 171(3)(d) of the Constitution of India. The claim to exercise of this constitutional right can, by no stret....
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....ntained in Section 62(5) of the Representation of the People Act, 1951. The first one is of Orissa High Court in the case of Sri Ramesh Chandera Jena @ Ramesh Jena V/s. State of Orissa and Ors.2010 SCC Online Ori 304. In the said case, the Division Bench of the Orissa High Court observed that it was of the opinion that since the Petitioner is a member of the Orissa Legislative Assembly, it would be proper to allow him to exercise his franchise by way of participating in the voting process for election to the Council of States. The learned Single Judge of the Jharkhand High Court in the case of Dhullu Mahto V/s. State of Jharkhand & Ors.W.P.(Cr.) No.72 of 2020 declined to interfere with an order passed by the learned SDJM, Dhanbad whereby the Petitioner therein was allowed to cast vote in the Rajya Sabha elections under the police escort. 27. A learned Single Judge of the Rajasthan High Court in the case of Banwari Lal Kushwaha V/s. State of Rajasthan and Ors.2016 SCC Online Raj 3359, struck a discordant note and observed that in the face of the mandatory provision, a person in custody cannot be allowed to exercise the right to vote. It was further held that the judgment of the O....
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.... vote by a person who is in custody, otherwise than by way of preventive detention, is plain and direct. The Parliament has, in its wisdom, not carved out any exception for election to constitutional bodies, which are to be elected by indirect method of election. The insertion of second proviso to subsection (5) of Section 62 is of some significance, in appreciating the legislative intent. The learned Additional Solicitor General was justified in canvassing a submission that the use of the expression "by reason of prohibition to vote under this sub-section" indicates that the Parliament was fully alive to the fact that the prohibition to vote operated even for election to Rajya Sabha and certain seats in the Legislative Council, for which indirect method of election was followed, and yet the Parliament carved out a limited exception that, despite such prohibition, a person whose name has been entered in the electoral roll shall not cease to be an elector. 29. In the aforesaid view of the matter, the submission on behalf of the Applicants that the prohibition to vote under the main part of sub-section (5) of Section 62, is only with a view not to permit a large body of persons....
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....result would be permitting a person to exercise the franchise, who is otherwise prohibited by law. 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. 33. The observations of the Supreme Court in the case of Anurag Kumar Singh V/s. State of Uttarakhand and Ors. Civil Appeal No.8334 of 2013 delineate the approach to be adopted when the Court is called upon to exercise the discretion against the statutory prescription, when no such discretion is vested in the Court. The following observations are instructive : 32..... In view of there being no fault on the part of the Appellants, we examined whether we could exercise our judicial discretion to direct their appointments. We realize that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. It will be useful to reprod....