Excelsior Correspondent
JAMMU, Oct 18: The High Court of Jammu & Kashmir and Ladakh has directed that MLA Mehraj Din Malik, a detenue under preventive custody, be allowed to exercise his franchise in the forthcoming Rajya Sabha elections scheduled for October 24, while reserving its decision on his plea to physically attend the 4th Session of the J&K Legislative Assembly, commencing October 23.
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The application, filed on behalf of Malik through his father Shamas Din, sought two-fold reliefs from the court-permission to participate in the Assembly Session scheduled between October 23 and 31, and the right to cast his vote in the elections to the Council of States.
The petitioner’s legal team, led by Senior Advocate Rahul Pant along with Advocates S S Ahmed, Muzaffar Iqbal Khan, Appu Singh Slathia, Tariq Mughal and M Zulkarnain Chowdhary, argued that the detenue, despite being in custody, is entitled to exercise his democratic rights, particularly since his detention falls under preventive and not punitive.
Justice Rajesh Sekhri noted that Section 62(5) of the Representation of the People Act, 1951 prohibits voting by persons confined in prison, whether serving a sentence or otherwise under police custody. However, the proviso to the same clause carves out a clear exception for individuals held under preventive detention, permitting them to vote.
Accepting this interpretation, the court recorded the submission of Senior Advocate Sunil Sethi and Senior Additional Advocate General Monika Kohli, representing the Union Territory administration, who fairly conceded the legal position. They further informed that a postal ballot had already been dispatched to the detenue through the Superintendent of the concerned jail, thereby facilitating his participation in the Rajya Sabha polls.
While the voting aspect was resolved, the respondents strongly opposed the request for Malik’s physical participation in the J&K Legislative Assembly Session. According to their submission, allowing a detenue to leave custody and take part in legislative proceedings would run contrary to the object of preventive detention and may raise law and order concerns.
The court, while acknowledging the submissions, refrained from granting immediate relief on this count and adjourned the matter for October 27, placing it at the top of the cause list for detailed consideration after perusal of the response filed by the UT administration.
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