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 results declared by the Election Commission on Tuesday, jailed Sikh preacher Amritpal Singh has 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 Singh has been booked under the National Security Act and sent to the Dibrugarh jail of Assam.
Now the question arises, can these jailed candidates be allowed to take oath, and if yes what is the process involved?
Explaining the legalities involved, Constitution expert and former Lok Sabha secretary general PDT Achari emphasised the importance of following the Constitutional provisions in such cases.
Being sworn in as a member of Parliament is a constitutional right, he said.
But because they are currently in jail, Engineer Rashid and Singh must seek the permission from the authorities to be escorted to Parliament for the oath-taking ceremony.
Once they have taken they oath, they will have to return to the jail.
To further explain the legalities involved, he 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.
He said that 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.
This decision struck down Section 8(4) of the Representation of the People Act, which earlier allowed convicted MPs and MLAs a three-month period to appeal against their convictions.
