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Prez Poll
SC allows jailed MPs, MLAs to cast votes
S.S. Negi
Legal Correspondent

New Delhi, July 18
The Supreme Court today allowed jailed MPs and MLAs to cast their votes in the tomorrow’s Presidential election saying the provision of Section 62(5) of the Representation of People Act (RPA) putting a bar on imprisoned persons to exercise their right to franchise would prima facie not apply to the members of the electoral college to elect the head of the state.

Making a distinction between voting by the legislators in the general elections and their casting votes for electing President or Vice-President as members of the electoral college, a Bench of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari said using the civil right by the elected representatives so far as their exercising the right of franchise as members of the electoral college was different than the ordinary citizen.

The court, however, accepted for hearing a public interest litigation (PIL) seeking to invoke the provision of Section 62(5) of the RPA in the Presidential election, which are essentially governed by a separate statute, the Presidential Election Act.

Meanwhile, the Bench allowed the plea of jailed RJD MP Mohammad Shahbuddin from Siwan to take him to the Bihar Assembly in Patna to cast his vote. The Election Commission was directed to make special arrangement for him to cast his vote in Patna though the voting by the MPs had to be done at Parliament House in Delhi.

He is lodged in the Siwan district jail in connection with several cases, including a murder case after his conviction recently. The jail superintendent was directed to take him in proper security to the Vidhan Sabha and back to the jail after he casts vote.

Senior advocate A.M. Singhvi, appearing for Shahbuddin, sought the intervention of the apex court after the Patna High Court could not take up the matter due to a long list of cases before it.

Singhvi informed the court that the high courts of Delhi and Jharkahnd had already permitted jailed RJD MP Pappu Yadav and JMM MP Shibu Soren to be taken out of jails in police escort for casting their votes.

Advocate Z.K. Faizan had yesterday moved a petition seeking to invoke the provisions of Section 62(5) of the RPA to seek a direction to the EC not to permit the jailed MPs and MLAs to cast their votes in tomorrow’s presidential election, stating that they were debarred from using their right to franchise in any election under the Section.

Shahbuddin, Soren, Pappu Yadav, BJP’s Babubhai Katara and BSP’s Umakant Yadav are the MPs presently lodged in jails, while the list of MLAs across the country was much longer.

Since the PIL was accepted for detailed hearing by the Court, it would examine the question whether Section 62(5) provision of the RPA could be extended to the election of the President and Vice-President.

As per the definition of Section 62(5), “No person shall vote at any election if he is confined to a prison, whether under a sentence or imprisonment or transportation or otherwise, or in a lawful custody of the police.” But preventive detentions were exempted from the bar.

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