 "(File Photo) Khalistani leader and Waris Punjab De chief Amritpal Singh as police launch an operation to arrest Waris Punjab De chief Amritpal Singh, on Saturday.")
The recently concluded Lok Sabha elections have thrown a unique situation in Indian parliamentary politics. Two candidates currently imprisoned on terrorism-related charges emerged victorious in the recent elections. While the law bars them from participating in the 18th Lok Sabha proceedings, they retain a constitutional right to take the oath as members of Parliament.
In the results announced on June 4, radical Sikh preacher Amritpal Singh won the Khadoor Sahib seat in Punjab, defeating Congress’ Kulbir Singh Zira. Singh, who fought the election as an independent candidate, won by a margin of 197,120 votes.
Another imprisoned candidate, Sheikh Abdul Rashid, known as Engineer Rashid, secured the Baramulla constituency in Jammu & Kashmir. Rashid won by more than 200,000 votes against Omar Abdullah of the Jammu & Kashmir National Conference.
Engineer Rashid has been incarcerated in Tihar Jail since August 9, 2019, on alleged terror financing charges. Amritpal Singh is detained under the National Security Act in Dibrugarh Jail, Assam.
How will Amritpal and Er Rashid take oath?
The issue now is whether these newly-elected MPs can be allowed to take their oaths, and if so, what procedures must be followed.
Speaking to news agency PTI, Constitution expert and former Lok Sabha Secretary General PDT Achari emphasised the importance of adhering to constitutional provisions in such cases. He stated that taking the oath as a member of the Parliament is a constitutional right. However, due to their imprisonment, they must obtain permission from the authorities to be escorted to Parliament for the oath-taking ceremony. After the ceremony, they must return to jail.
After taking the oath, they must notify the Speaker in writing of their inability to attend House proceedings, as per Article 101(4) of the Constitution, which deals with members’ absence without prior sanction.
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The Speaker will refer their requests to the House Committee on Absence of Members, which will recommend whether the member should be allowed to remain absent from proceedings. The Speaker will then put the recommendation to a vote in the House.
However, if either Engineer Rashid or Singh is convicted and sentenced to at least two years in prison, they would immediately lose their Lok Sabha seats, according to the 2013 Supreme Court judgement disqualifying MPs and MLAs in such cases.
This decision overturned Section 8(4) of the Representation of the People Act, which previously allowed convicted MPs and MLAs a three-month period to appeal their convictions.
Other examples
In March this year, a court granted permission for Aam Aadmi Party leader Sanjay Singh, who was imprisoned in Tihar jail on money laundering charges, to be sworn in as a Rajya Sabha MP for a second term. The court instructed the jail superintendent to ensure his secure transport to Parliament and back to the jail.
In 2021, after winning from Sibsagar, Assam, Akhil Gogoi was permitted by an NIA court to temporarily leave prison for his induction into the Assam Legislative Assembly.
One of the most notable instances of winning an election from behind bars occurred in 1977, when trade unionist George Fernandes secured victory from the Muzaffarpur seat during the Emergency. He was released from prison before his oath-taking ceremony.
Watch: How jailed LS polls winners Amritpal Singh and Er Rashid will take oath?
