The 2024 Lok Sabha elections have produced some unexpected results, with jailed candidates Abdul Rashid Sheikh from Baramulla and Amritpal Singh from Khadoor Sahib emerging victorious from their constituencies. Engineer Rashid significantly defeated former Jammu and Kashmir Chief Minister Omar Abdullah.
Despite their wins, the question remains whether they will be able to enter parliament, whether they will need to forfeit their seats, and whether they will be released to serve their terms. How will they take their oaths of office?
As per the Representation of the People Act, 1951, of the constitution, Indian citizens aged eighteen and over who are ordinarily residents in a constituency can register to vote there.
However, in case of a prisoner serving a jail term or arrested for any offence cannot exercise the right to vote as his rights are temporarily suspended.
Despite this, the law does not bar incarcerated individuals from contesting elections unless convicted of certain offences.
According to the statutes of the Indian constitution, every person, until proven guilty, is innocent. Therefore, Engineer Rashid and Singh could run for office while imprisoned.
Although imprisoned individuals cannot cast their vote, their rights remain suspended. However, a 2013 Supreme Court ruling mandates immediate disqualification of MPs and MLAs upon conviction.
This ruling invalidated Section 8(4) of the Representation of the People Act, which previously allowed a three-month window to appeal convictions. If Rashid or Singh are convicted, they will immediately lose their Lok Sabha seats.
Rashid was jailed under the Unlawful Activities Prevention Act (UAPA) and was an aide to slain Hurriyat leader Abdul Gani Lone. Singh, a Khalistani leader, is detained under the National Security Act (NSA).
Historically, Indian courts have granted temporary bail or parole for elected representatives in jail to take their oaths.
Examples include BSP leader Atul Rai in 2020 and Samajwadi Party MLA Nahid Hasan in 2022. Similar temporary releases could be expected for Rashid and Singh to ensure they can formally assume their roles.
Performing parliamentary duties from jail poses significant challenges. While communication channels and meetings can be arranged to allow jailed MPs and MLAs to represent their constituents, their participation in parliamentary sessions and committee meetings is limited.
They often rely on party colleagues, family members, and legal teams to assist in their responsibilities.
Although some level of service and representation can be provided from jail, the ability to engage comprehensively in parliamentary duties is inevitably compromised.
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