The Supreme Court Monday declined the plea of jailed Nationalist Congress Party leaders and MLAs Nawab Malik and Anil Deshmukh seeking temporary release from prison to cast their votes in the Maharashtra legislative council election.
A vacation bench of Justices C T Ravikumar and Sudhanshu Dhulia, however, issued notice to the Maharashtra government and others in the case and agreed to examine the issue relating to the interpretation of Section 62(5) of the Representation of the People Act 1951, which bars jailed persons from voting.
"In view of the larger question with respect to interpretation of Section 62(5) of Representation of the People Act 1951, we are of the view that matter has to be heard in detail. It's open for the parties to complete the pleadings within four weeks.
"On the question of interim relief taking note of the fact that the constitutional validity of Section 62(5) was upheld by the Supreme Court in the Anukul Chandra Pradhan Vs Union of India case and S Radhakrishnan Vs Union of India, we are not inclined to grant interim relief," the bench said.
At the outset, senior advocate Meenakshi Arora, appearing for the jailed lawmakers, submitted that not permitting the two from voting in MLC elections will effectively impact the rights of all voters who had elected the two lawmakers.
"People have sent me to the legislative assembly. I represent their choice and decision-making in the legislative assembly. If I am deprived of my right to vote, the right of all those persons who voted for me has also been taken away," she said.
The senior lawyer said rather than being a statutory right, the right to vote is also a constitutional right.
"Right to vote is not a fundamental right but is certainly a constitutional right and the right originates from the Constitution," she said.
Solicitor General Tushar Mehta, appearing for the Enforcement Directorate, submitted that the embargo under Section 62(5) of the Representation of the People Act 1951 applies to MLAs too.
Earlier in the day, Arora mentioned the matter saying that the plea needed to be heard on Monday itself as the polling is being held today.
The bench had said such matters have to go before the Chief Justice of India (CJI) first before allowing an urgent listing.
"In respect of matters listed during the vacation, there is a circular and the matter has to go before the CJI," the bench had said.
However, it took note of the vehement submission of the senior lawyer and said it would see whether the matter can be taken up for hearing in the afternoon.
The Bombay high court had on June 17 rejected the NCP leaders' plea seeking temporary release from prison for casting their ballots saying the constitutional right to vote is not absolute.
Malik, who is still a cabinet minister in the state, and former Maharashtra home minister Anil Deshmukh, both of whom are in prison after being arrested in separate money laundering and corruption cases, had sought the court's permission to be let out of custody "for a few hours," and "under escort protection" to vote.
The senior counsel said that the matter needed an urgent hearing today itself as the jailed MLAs have the right to vote in the MLC elections.
The high court had rejected the pleas of the leaders, saying that while their lawyers argued that their clients must be permitted to vote to uphold democratic principles, the concept of democracy "transcended electoral democracy."
The embargo in law, imposed via section 62 (5) of the Representation of the People Act, was based on reason, the high court had said, adding that it has been imposed to ensure "purity of electoral process and probity of the participants therein."
The two leaders had moved the court earlier contending that as they are members of the legislative assembly and representatives of their respective constituencies, they ought to be given the opportunity to vote in the council election.
"The claim to the exercise of this constitutional right can, by no stretch of the imagination, be said to be absolute," the high court had said in the judgment.
Earlier, Malik and Deshmukh had moved the courts for temporary bail for voting in the June 10 Rajya Sabha election from Maharashtra but were denied relief.