At this time, it looks like neither Nawab Malik nor Anil Deshmukh – who are in custody in money laundering cases brought by the Enforcement Directorate – will be able to vote in the Rajya Sabha elections, despite their votes potentially being crucial.
The Bombay High Court has asked Maharashtra minister Malik to amend his pleas under Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure, and instead file a bail application before it.
While this could still lead to him getting permission to go and cast his vote, it will be logistically difficult for the new plea to be filed, for the court to hear it, and then for arrangements to be made so that Malik can be taken to the Vidhan Sabha for the vote, all in the same day.
Former Maharashtra Home Minister Deshmukh had also filed pleas before the high court on the same grounds as Malik, and will therefore be required to go through the same process.
But why is it that they are being denied their right to vote in the Rajya Sabha elections? Was the special PMLA court which heard their pleas to be granted temporary bail right to deny them this opportunity? And why didn't the Bombay High Court consider their pleas under constitutional considerations?
WHERE DOES RESTRICTION ON PRISONERS' RIGHT TO VOTE COME FROM?
The Representation of the People Act 1951 is the law which sets out the key provisions on voting in India, from who can stand for elections to how elections are to take place. This includes the voting process for general elections to the Lok Sabha and state assemblies, as well as the special elections to upper houses like the Rajya Sabha.
Section 62 of the Act prescribes the general right to vote, which is granted to those who are entered on the electoral rolls of a constituency.
NOTE: A person can only be on the electoral roll of a particular constituency if they are a citizen of India who is 18 years of age or older and ordinarily resident in that constituency – these conditions and disqualifications are set out in a separate law, the Representation of People Act .
Section 62(5) of the 1951 Act states that:
No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.
This is what is being used to deny Malik and Deshmukh their opportunity to vote in the Rajya Sabha elections.
While neither of them has been convicted of any crime and sentenced to imprisonment, they are "confined in a prison," and the language of Section 62(5) is broad enough to cover them as well.
Only prisoners who are in preventive detention are not covered by Section 62(5). Any other person who is in prison, whether a convict or an undertrial, is technically barred from voting.
HOW CAN THIS RESTRICTION BE LEGAL?
Intuitively, it may seem strange that a person who has not actually been convicted of any crime can suffer a loss of a right, just because they are in custody.
People are supposed to be innocent until proven guilty under our criminal justice system, and even disqualifications from standing for elections only apply after convictions for offences where the punishment is over two years.
However, the restriction in Section 62(5) of the RP Act of 1951 was upheld by the Supreme Court in the 1997 case of Anukul Chandra Pradhan vs Union of India.
In this case, the petitioner raised all the obvious challenges to Section 62(5), including its lack of distinction between undertrials and convicts, and how even convicts can actually vote if they are out on bail/parole. Despite this, the apex court held there was no reason to interfere with the law.
The bench headed by former Chief Justice of India JS Verma noted that laws can be passed which create different classifications of people and prescribe different treatment for them, as long as the classification is reasonable, and has a rational nexus with the objectives of the classification.
In this matter, the classification was considered reasonable. The apex court noted that there "are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections."
The court also noted that the conduct of free and fair elections requires security arrangements. Allowing prisoners to vote would mean additional deployments of police forces and other security measures, which creates financial and logistical burdens that justify the restrictions in Section 62(5).
ARE THESE REALLY GOOD ENOUGH GROUNDS TO RESTRICT THE RIGHT TO VOTE?
While the Supreme Court's judgment obviously holds the field when it comes to this issue, it might seem surprising that these kind of justifications can be used to restrict as important a right as the right to vote.
Remember that the restriction in Section 62(5) doesn't just apply to people like Malik and Deshmukh trying to vote in the Rajya Sabha elections, but to any citizen wanting to cast their vote even in a general election, which is the very foundation of democracy.
However, the right to vote is actually not a fundamental right. It is not a constitutional right, and it isn't even a common law right.
There is a long line of Supreme Court decisions which make this point clear, starting from 1952. The right to vote is instead a right created by a particular statute, and therefore is subject to whatever restrictions are imposed in the statute.
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, creations they are, and therefore, subject to statutory limitation."
This technical point becomes very important to understand why Malik and Deshmukh's case was rejected by the special PMLA court and why the Bombay High Court told Malik to refile his plea under different grounds.
It had been specifically pointed out to the special court that in 2017, former Maharashtra minister Chhagan Bhujbal – who was in custody at the time in a case by the ED like Malik and Deshmukh – had been allowed to go vote in the presidential election by a special PMLA court.
Unfortunately for Malik and Deshmukh, the right to vote in the presidential election comes from a different law, the Presidential and Vice Presidential Elections Act, 1952. This law contains no restrictions on voting by a person who is in jail for whatever reason – and so the statutory right of Chhagn Bhujbal to vote in the 2017 presidential election could not be taken away just because he was in custody.
The Bombay High Court can also not apply considerations under Article 21 of the Constitution (right to life and personal liberty) to allow the two NCP leaders to go and vote – unlike situations where prisoners are allowed to go for funerals etc on bail.
This is not to say that the high court cannot allow the two MLAs to go and vote by granting them bail. Since this is a Rajya Sabha election, not a general election, there are no large-scale security arrangements to be made.
They have both agreed to whatever police escort is required and the voting takes place in the Vidhan Sabha, not a public polling booth – so there is no real chance of them absconding or trying to influence witnesses.
While the ED will of course argue that the cases against them are serious and therefore they shouldn't be allowed on bail despite the lack of a flight risk or risk to evidence/witnesses, since the request is only for a limited time, the high court would be well within its rights to grant them temporary bail.
However, the release cannot be on constitutional grounds, which does tie even the hands of a court with the extraordinary powers of a high court.