Similarly, jailed pro-Khalistan leader Amritpal Singh won Punjab’s Khadoor Sahib constituency, defeating his nearest rival Congress candidate Kulbir Singh Zira by a margin of 1,97,120 votes.
Taking oathDue to their election victories, both politicians now have a constitutional mandate to function as legislators and, therefore, take the oath of office.
Thus, both Amritpal and Rashid will now have to seek judicial intervention to be sworn in as MPs.
Rashid has already moved Delhi’s Patiala House Court seeking interim bail or, in alternative, custody parole, to take the oath and perform other ancillary functions as an MP.
If Amritpal or Rashid are eventually convicted, they would immediately lose their seats in the Lok Sabha.
The story so far: In the recently concluded Lok Sabha elections, the victory of two candidates serving prison sentences on terror charges has raised questions about their ability to take oath and function as legislators.
Also Read:Warless Punjab: the Amritpal Singh arrest and keeping Punjab peaceful
Abdul Rashid Sheikh, popularly known as “Engineer Rashid,” has won from Kashmir’s Baramulla seat, defeating National Conference leader and former Jammu and Kashmir Chief Minister Omar Abdullah and Peoples Conference (PC) chairman Sajad Gani Lone. Similarly, jailed pro-Khalistan leader Amritpal Singh won Punjab’s Khadoor Sahib constituency, defeating his nearest rival Congress candidate Kulbir Singh Zira by a margin of 1,97,120 votes.
The charges
Amritpal was arrested by the Punjab Police from Moga’s Rode village last April and charged under the National Security Act, 1980 (NSA) after a month-long manhunt launched by the police and security agencies against him and his outfit Waris Punjab De. Lodged in Assam’s Dibrugarh jail, the Khalistan sympathiser is facing eleven criminal cases in Punjab and one in Dibrugarh for alleged unauthorised use of electronic gadgets in the prison. The NSA is a preventive detention law that permits the detention of individuals for up to 12 months without pressing formal charges.
For the past five years, Rashid has been in Delhi’s Tihar Jail facing charges of “terror funding” under the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA). The two-time MLA contested as the Awami Ittehad Party’s (AIP) candidate and won by a margin of two lakh votes. In Rashid’s absence, his sons, Abrar Rashid and Asrar Rashid, campaigned for him, urging voters to avenge his arrest with the popular slogan “Jail ka badla vote se” (revenge of jail with vote).
Taking oath
Due to their election victories, both politicians now have a constitutional mandate to function as legislators and, therefore, take the oath of office. Under Article 99 of the Constitution, every member of Parliament (MP) is mandated to take an oath before the President before commencing their service.
Several instances in the past have shown that incarcerated lawmakers can be granted custody parole or interim bail to fulfil their parliamentary obligations. For instance, in March, Aam Aadmi Party (AAP) leader Sanjay Singh, who was imprisoned in Tihar jail on money laundering charges related to the now-scrapped Delhi excise policy, was granted permission by a Delhi Court to take his oath as a Rajya Sabha member.
Special Judge M.K. Nagpal had directed the concerned authorities to ensure that adequate security arrangements were made for Singh’s visit to the Parliament and subsequent return to judicial custody. Further, the AAP politician was not permitted to use a mobile phone or speak to anyone while travelling to the Parliament. Similarly, in 2021, a special NIA Court allowed jailed anti-CAA activist Akhil Gogoi to temporarily leave prison to take oath as a member of the Assam Legislative Assembly.
Thus, both Amritpal and Rashid will now have to seek judicial intervention to be sworn in as MPs. The concerned Courts can either grant them temporary bail to attend the oath-taking ceremony or send them to the Parliament in police custody only for the ceremony. They will then return to jail once the ceremony ends. Rashid has already moved Delhi’s Patiala House Court seeking interim bail or, in alternative, custody parole, to take the oath and perform other ancillary functions as an MP. On June 6, the Court sought a response from the National Investigation Agency (NIA) and scheduled the matter for further hearing on June 7.
In May, the Waris Punjab De chief had moved the Punjab and Haryana High Court seeking temporary release for seven days to file his nomination to contest the Lok Sabha polls. However, the petition was disposed of as infructuous after the State government apprised the Court that he had already complied with all nomination formalities. On June 6, Amritpal’s lawyer Rajdev Singh Khalsa told the Hindustan Times that he would press for his release on interim bail following his electoral victory.
Depending on the duration of the duo’s parole or interim bail, they will have to notify the Speaker in writing that they will be unable to attend the House proceedings owing to their incarceration. This is crucial because Article 101(4) of the Constitution stipulates that if for 60 days a member of either House of Parliament is absent from all meetings without permission of the House, the House may declare his seat vacant. The Speaker will then refer their requests to the House Committee on Absence of Members to take a call on whether to allow the MPs to continue missing House proceedings. This recommendation will consequently be put to a vote in the House by the Speaker.
Also Read: The role of special inquiry committees of Parliament | Explained
What happens if they are convicted?
If Amritpal or Rashid are eventually convicted, they would immediately lose their seats in the Lok Sabha. This stems from Section 8(3) of the Representation of People Act, 1951 (RPA) which mandates the disqualification of MPs in case they are convicted of any offence and sentenced to imprisonment for not less than two years. As a result, they will cease to be MPs and will also be barred from contesting elections for a further period of six years after their release. Additionally, their seat will also be declared vacant which will necessitate the conduct of by-polls.
Previously, Section 8(4) of the RPA would provide a three-month window for the convicted legislator to file an appeal during which the disqualification would not take effect. However, this provision was struck down by the Supreme Court for being unconstitutional in the case of Lily Thomas v. Union of India (2013). A division judge bench comprising Justices A.K. Patnaik and S.J. Mukhopadhaya reasoned that the Parliament had no legislative power to defer the date on which the disqualification of a sitting member would have effect.
