In a surprising turn of events, the recently concluded Lok Sabha elections have unveiled an unusual scenario set to challenge the upcoming 18th Lok Sabha formation.
Despite facing legal charges and imprisonment, two controversial candidates have clinched victories in the polls. Radical Sikh preacher Amritpal Singh and Sheikh Abdul Rashid, also known as Engineer Rashid, emerged as winners in their respective constituencies despite facing legal challenges.
On Tuesday, the Election Commission (EC) officially announced the election results, Singh clinched victory in Punjab’s Khadoor Sahib seat, while Rashid triumphed in Jammu and Kashmir’s Baramulla.
However, despite their electoral success, both Singh and Rashid find themselves in a predicament. Legal constraints bar their physical presence in the new House, casting a shadow over their ability to actively participate in legislative affairs. Nevertheless, their constitutional right to assume office as Members of Parliament remains intact.
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Engineer Rashid has been detained in Tihar jail since August 9, 2019, on allegations of terror financing, while Singh was arrested in April 2023 under the National Security Act and incarcerated in Dibrugarh prison, Assam.
The question arises concerning the possibility of these newly elected MPs taking the oath, and if so, how.
Constitution expert PDT Achari, a former secretary general of the Lok Sabha, highlighted the importance of following constitutional provisions in such cases. Achari said that being sworn in as a Member of Parliament is a constitutional right.
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However, given their current imprisonment, Engineer Rashid and Singh must obtain permission from authorities to be escorted to Parliament for the oath-taking ceremony. After taking the oath, they will need to return to prison. Achari further explained that Article 101(4) of the Constitution deals with the absence of members from both Houses of Parliament without prior sanction of the Chair.
Would they be allowed to attend parliament?
After their oath-taking ceremony, the two candidates would need to write to the Speaker, informing them about their inability to attend the House. The Speaker would then forward their requests to the House Committee on Absence of Members.
The committee would decide whether the members should be allowed to remain absent from House proceedings or not. The Speaker would then put the committee’s recommendation to a vote in the House.
If Engineer Rashid or Singh were to be convicted and sentenced to a minimum of two years in jail, they would immediately lose their seats in the Lok Sabha. This is based on a Supreme Court ruling from 2013, which states that MPs and MLAs would be disqualified in such situations.
This decision overturned section 8(4) of the Representation of the People Act, which previously allowed convicted MPs and MLAs three months to appeal against their convictions.