Two candidates who are currently in prison on charges related to terrorism emerged winners in the recently concluded parliamentary election, giving rise to an unusual situation. Although the law prevents them from participating in the proceedings of the 18th Lok Sabha, they possess a constitutional right to to take oath as members of Parliament.
In the results declared on June 4, radical Sikh preacher Amritpal Singh won from Punjab's Khadoor Sahib seat while terror financing accused Sheikh Abdul Rashid, popularly known as Engineer Rashid, bagged the Baramulla constituency in Jammu & Kashmir.
Singh won by a big margin of 1,97,120 votes against his nearest rival Kulbir Singh Zira, Congress' candidate from the seat. While, Sheikh Rashid won by over 2 lakh votes against Jammu & Kashmir National Conference's leader Omar Abdullah.
Engineer Rashid has been lodged in the Tihar jail since August 9, 2019 on charges of alleged terror financing. Amritpal Singh has been booked under the National Security Act and sent to the Dibrugarh jail of Assam.
The question now arises on whether these jailed newly-elected MPs can be allowed to take oath, and if so, what are the procedures involved.
According to Constitution expert and former Lok Sabha secretary general PDT Achari, following the Constitutional provisions in such cases is of utmost importance.
Speaking to news agency PTI, he said that being sworn in as a member of Parliament is a constitutional right. However, because these two people are currently in jail, they must take permission from the authorities to be escorted to Parliament for the oath-taking ceremony. Once the ceremony is completed, they will have to return to the jail.
Further, Achari clarified the legal aspects by referring to Article 101 (4) of the Constitution which deals with the absence of members from both Houses of parliament without prior sanction of the chair. He explained that after taking the oath, they will inform the Speaker in writing about their inability to attend the House proceedings. The Speaker will then refer their requests to the House Committee on Absence of Members.
The Committee will then make a recommendation on whether the member should be allowed to remain absent from House proceedings or not. The Speaker will then put the recommendation to a vote in the House.
If Engineer Rashid or Singh are to be convicted and jailed for a minimum of two years, they would immediately lose their seats in the Lok Sabha, 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.
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