• India
  • Jun 06

Can jailed election winners take oath?

• The victory of two candidates who are in jail on terror charges has brought up a unique situation. While the law will keep them away from attending proceedings of the 18th Lok Sabha, they also have a Constitutional right to take oath as members.

• In the Lok Sabha election results declared by the Election Commission on June 4, jailed Sikh preacher Amritpal Singh won from the Khadoor Sahib seat, while incarcerated Sheikh Abdul Rashid, also known as Engineer Rashid, emerged victorious from the Baramulla constituency.

• Engineer Rashid has been lodged in the Tihar jail since August 9, 2019 on charges of alleged terror financing, while Amritpal Singh was arrested in April 2023 under the National Security Act and is held in Dibrugarh prison in Assam.

Can these jailed candidates take oath?

• Explaining the legalities involved, experts highlight the importance of following the Constitutional provisions in such cases.

• Being sworn in as a member of Parliament is a Constitutional right.

• But because they are currently in jail, Engineer Rashid and Singh must seek permission from the authorities to be escorted to Parliament for the oath-taking ceremony.

• Once they have taken the oath, they will have to return to jail.

• In March 2024, Aam Aadmi Party’s Sanjay Singh, who has been in Tihar Jail since October 2023 in connection with a case pertaining to now scrapped Delhi excise policy, took oath as a member of the Rajya Sabha in the presence of Vice President Jagdeep Dhankhar. Singh was brought under a security cover, at the order of a local court.

• An expert cited Article 101(4) of the Constitution that deals with the absence of members from both Houses of Parliament without prior sanction of the Chair.

• After they have taken oath, they will write to the Speaker informing him/her about their inability to attend the House. The Speaker will then refer their requests to the House Committee on Absence of Members.

• The Committee then recommends whether the member should be allowed to remain absent from House proceedings or not. The recommendation is then put to the vote of the House by the Speaker.

• If Engineer Rashid or Singh are to be convicted and jailed for a minimum of two years, they would lose their seats in the Lok Sabha immediately as per the Supreme Court judgment of 2013 which holds that MPs and MLAs would be disqualified in such cases.

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