Two independent candidates, radical Sikh preacher Amritpal Singh and Sheikh Abdul Rashid, also known as Engineer Rashid, have secured victories in the Khadoor Sahib and Baramulla constituencies despite being imprisoned on terror charges. The question arises, Can they legally take the oath as Members of Parliament? According to Indian law, the legal framework surrounding their potential swearing-in and the implications of their criminal charges will determine their eligibility to serve in the Lok Sabha.
The Lok Sabha Election produced some intriguing results, notably the wins of pro-Khalistani separatist Amritpal Singh and Sheikh Abdul Rashid, known as Engineer Rashid, both currently incarcerated on serious charges under investigation by the National Investigation Agency (NIA).
The results announced on June 4 revealed that Singh secured the Khadoor Sahib seat in Punjab, while Rashid claimed victory in the Baramulla constituency in Kashmir. Singh achieved a substantial lead with 4,04,430 votes, defeating his closest rival, Congress candidate Kulbir Singh Zira, who obtained 2,07,310 votes. Rashid, with 4,70,000 votes, won decisively against former chief minister Omar Abdullah.
The oath-taking ceremony , a crucial step for newly elected parliamentarians, although it is not explicitly outlined in the Constitution. Once they have taken the oath, Rashid and Singh will need to inform the Speaker of their inability to attend House proceedings, as per Article 101 (4) of the Constitution.
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The Speaker will then refer their requests to the House Committee on Absence of Members. This committee will evaluate whether the reasons for their absence are valid and make a recommendation to the House, which will then be put to a vote.
If Rashid or Singh convicted and sentenced to imprisonment for a minimum of two years, they will automatically lose their seats in the Lok Sabha. This is in line with the Supreme Court’s 2013 judgment, which stipulates that MPs and MLAs shall be disqualified in such cases.
In recent years, there have been instances of individuals being granted permission to temporarily leave prison to fulfil their elected duties. In March 2024, Sanjay Singh of the Aam Aadmi Party (AAP) was granted permission by a trial court to be taken from Tihar Jail to the Parliament building to be sworn in as a Rajya Sabha member. The court directed the jail superintendent to ensure Singh’s security during the swearing-in ceremony and his subsequent return to the prison.
Similarly, in 2021, an NIA court allowed Akhil Gogoi, who had won a seat in the Assam Legislative Assembly while imprisoned, to temporarily leave prison to take his oath of office.
The most well-known case of an election victory from prison occurred in 1977, when trade unionist George Fernandes elected to the Muzaffarpur seat while incarcerated during the Emergency. Fernandes released from prison before the oath-taking ceremony.
Rajdev Singh Khalsa, the representative for Amritpal Singh, highlighted Singh’s initiatives against drug abuse in Punjab and expressed his intent to seek bail for Singh.
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Khalsa stated,
“The government will be forced to provide relief, as there is no other option; both the BJP and AAP governments will be compelled to act. Amritpal Singh was working towards making Punjab drug-free. The public has recognized his arrest as both illegal and immoral,”
Amritpal Singh has been detained in Dibrugarh, Assam, under the National Security Act (NSA) since March 2023. The NSA, a preventive detention law that permits the government to hold individuals for up to 12 months without formal charges.
Rashid has been incarcerated in Delhi’s Tihar jail since 2019, facing charges under the Unlawful Activities Prevention Act (UAPA) related to an alleged terror-funding case. A former MLA, Rashid ran for election on an Awami Ittehad Party ticket.