The results of the Lok Sabha elections 2024 have seen two atypical victors: Waris Punjab De chief Amritpal Singh from Punjab’s Khadoor Sahib, and separatist leader Engineer Rashid from Jammu and Kashmir’s Baramulla. Both leaders are currently incarcerated under serious charges being investigated by the National Investigation Agency (NIA).
Amritpal Singh has been detained in Dibrugarh, Assam under the National Security Act (NSA) since March 2023. The NSA is a preventive detention law that allows the government to hold individuals for up to 12 months without formal charges. Rashid, a former MLA, is held in Delhi’s Tihar jail under the Unlawful Activities Prevention Act (UAPA) in a terror-funding case. He contested the election on an Awami Ittehad Party ticket.
Despite their imprisonment, their electoral victories mean they now hold constitutional mandates as parliamentarians. The process of taking oath is essential for them to fulfill their roles as MPs. While the Constitution does not explicitly detail the procedure for jailed lawmakers, there are precedents where such individuals were granted temporary parole to take their oaths. For instance, in March, Aam Aadmi Party leader Sanjay Singh, imprisoned on money laundering charges, was permitted by a court to take his oath as a Rajya Sabha MP. Similarly, in 2021, Akhil Gogoi, after winning a seat in the Assam Legislative Assembly, was allowed by an NIA court to temporarily leave prison to take his oath.
The most notable instance occurred in 1977 when trade unionist George Fernandes was elected from the Muzaffarnagar seat while imprisoned during the Emergency. He was released before the oath ceremony.
Taking the oath does not equate to being released on bail but rather a special one-day parole. After taking the oath, the imprisoned lawmakers must notify the Speaker of their inability to attend proceedings. According to Article 101(4) of the Constitution, an MP’s seat can be declared vacant if they are absent from all meetings for over 60 days without permission.
For attending parliamentary sessions or casting votes, these lawmakers would need to seek court permission each time.
The election of Amritpal Singh and Engineer Rashid presents a unique challenge in Indian parliamentary proceedings, setting a precedent for handling the mandates of elected representatives who are under detention.
If Engineer Rashid or Amritpal Singh are convicted and receive a sentence of at least two years in prison, they will immediately lose their seats in the Lok Sabha. This follows the Supreme Court’s 2013 ruling that struck down Section 8(4) of the Representation of the People Act, which had previously granted convicted MPs and MLAs a three-month grace period to appeal their convictions.
