The right to contest an election from jail does not give anyone the right to be released for campaigning, the Delhi High Court today 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.
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.