 "Delhi High Court")
The right to contest an election from jail does not give anyone the right to be released for campaigning, the Delhi High Court Monday said while rejecting custody parole to MLA Mukhtar Ansari to canvass for himself in the UP assembly polls.
"A right to contest the election cannot imply that the candidate gets a right to be released from jail for canvassing as a candidate for being elected. If the candidate is in custody for an alleged offence, it would be the discretion of the court to release him or not, depending on the facts and circumstances of the case," Justice Mukta Gupta observed.
Setting aside the trial court's decision to grant custody parole to Ansari, the judge, in a 23-page order, said "when a person in custody fills up nomination as a candidate, he does not get a vested right to be released for canvassing. He runs the risk of not released on bail to contest election from custody."
Ansari, an MLA who recently joined the Bahujan Samaj Party (BSP) to contest from Mau Assembly seat in UP, was given custody parole by a trial court on February 16 till March 4, enabling him to campaign in the election.
The order was stayed the next day by the high court after Election Commission of India (ECI) moved a plea seeking cancellation of his parole on the ground that he may influence witnesses in the 2005 murder case of BJP MLA Krishnanand Rai in which he is facing trial in a Delhi court.
The high court observed that "the legal right of a candidate to contest an election does not translate into a legal right to canvass for his candidature.
"Further, the requirement of a candidate to canvass in an election for himself is always subservient to the larger public interest i.E. The constitutional mandate of holding a free and fair election. No candidate can be permitted to do any act which interferes with the process of a free and fair election."
The court accepted the contention of ECI's counsel and senior advocate Dayan Krishnan that while seeking permission to go out during daytime in custody, Ansari has been provided security cover, violative of instructions of ECI and interfering in free and fair polls.
(Reopens LGS6)
"The impugned order is a composite order where custodia legis (custody of the law) of Ansari continues by posting armed guards. This is contrary to clause 3.21 of the Instructions of the ECI. It is well settled that what cannot be done directly cannot be done indirectly.
"No court can pass orders violating the ethos of a free and fair election. Undoubtedly the impugned order violates the instructions of ECI," the court said.
The high court also noted that even though a person with criminal background and antecedents would not be a desirable person to contest the elections, but the legislation does not debar him from contesting.
"Thus, as long as the Representation of the People Act, 1950 qualifies a citizen to contest an election, he cannot be prohibited from contesting the same by filing the nomination," it said.
The court also said the custody of a prisoner away from the prison or the court to any other place cannot be shifted, except for a short period and only to meet emergent situations like death in the family or to go to hospital or marriage of a child or sibling.
"The same cannot extend for long periods and for daily visits and cannot be substitute of a grant of bail," it said.
While denying the relief to Ansari, the court said "even though an order passing temporary bail has not been granted in favour of Ansari, but the import of the order i.E. Release of respondent everyday till March 4 from 7 AM to 8 PM is akin to temporary bail."
"By passing the impugned order the trial court also failed to take note of other relevant conditions which have been prescribed by the Supreme Court time and again for grant of bail," the high court said, adding that the trial court in its order had only noted that the MLA was earlier also granted such a concession.
"The impugned order is thus ex-facie illegal and is set aside on this count itself," it said.
Besides the ECI, the State of Uttar Pradesh, prosecuting agency and the complainant in the BJP MLA's murder case had also moved the high court opposing Ansari's release from jail in Lucknow.
Their contention was opposed by Ansari's counsel, saying the ECI's claims were baseless and it was not the ground to restrict his movement in his constituency where he is contesting, as none of the witnesses are from there.
Senior advocates Salman Khurshid and Sudhir Nandrajog,
appearing for Ansari, had said that only in an extraordinary situation, can the ECI come to court.
"Participation of candidates in free and fair election is also a basic structure of the Constitution," the counsel had submitted.
They had contended that Ansari has been elected from Mau constituency for a record four times and he was willing to give an undertaking that he would not violate its order.
Strongly opposing it, the poll panel had said that the release of the accused would have a direct impact on the conduct of free and fair election in Mau constituency.
The accused, while seeking the relief, had told the trial court that he has been in judicial custody since December 2005 and was granted parole to contest polls earlier too.
Ansari has over 40 criminal cases against him, including that of murder and kidnapping.
