Can Jailed Candidates Who Won General Elections Take Oath As Lok Sabha Members? | Explained

New Delhi: The Lok Sabha Election 2024 results declared by the Election Commission on Tuesday have thrown a surprise with the victory of two candidates serving jail term on charges of terrorism bringing up a rather unique situation. Notably, jailed Khalistani extremist Amritpal Singh has won from the Khadoor Sahib Lok Sabha constituency, while incarcerated Sheikh Abdul Rashid, also known as Engineer Rashid, emerged victorious from the Baramulla constituency in Jammu and Kashmir. So, the question of the hour is: can the duo partake proceedings of the upcoming Lok Sabha?

According to law, they can not attend the proceedings of the 18th Lok Sabha. They do, however, have a Constitutional right to take oath as members.

But would they be allowed to take oath? And if so, what is the process involved? 

Constitution expert and former Lok Sabha secretary general PDT Achari explained the legalities involved to news agency PTI as he emphasized on the importance of following the Constitutional provisions in such cases.

Being sworn in as a member of Parliament is a constitutional right, he told PTI.

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 (NSA) and sent to the Dibrugarh jail of Assam.

But because they (Rashid and Singh) are currently in jail, they must seek the permission from the authorities to be escorted to Parliament for the oath-taking ceremony, Achari underlined, adding that the duo will have to return to the jail as soon as their oath-taking session is completed.

Explaining the legalities involved furthermore, the former Lok Sabha secretary general 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 the jailed candidates have taken oath, he continued, they will be required 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 will then further recommends on whether or not the member(s) should be allowed to remain absent from House proceedings. The recommendation is then put to the vote of the House by the Speaker.

If Rashid or Singh are to be convicted and jailed for a minimum of two years, they would immediately cease to hold their seats in the Lok Sabha, according to the Supreme Court judgment of 2013 which held 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.  

(With inputs from PTI)