Jailed 2 Victorious Candidates Sweep LS Election, Constitutional Quandary Looms

Srinagar: In an unexpected twist, two candidates currently serving time on militancy charges have emerged victorious in the recently concluded parliamentary election, presenting a unique scenario as the 18th Lok Sabha prepares to convene in the coming days.
Despite their victory, legal restrictions will prevent their physical presence in the new House’s proceedings, although both candidates retain their constitutional right to be sworn in as Members of Parliament.
The Election Commission officially announced the results of the Lok Sabha polls, revealing the success of radical Sikh preacher Amritpal Singh in Punjab’s Khadoor Sahib constituency and the electoral triumph of Sheikh Abdul Rashid, commonly known as Engineer Rashid, who is facing allegations related to militant financing, securing victory in Jammu and Kashmir’s Baramulla constituency.
Engineer Rashid has been detained in Tihar jail since August 9, 2019, facing accusations of involvement in militant funding, while Amritpal Singh has been incarcerated since April 2023 under the National Security Act, serving time in Assam’s Dibrugarh prison.
The looming question now revolves around whether these recently elected MPs in custody will be permitted to take their oaths, and if so, how.
Highlighting the intricacies of the legal process, constitutional expert and former Lok Sabha secretary general PDT Achari in interview with reporters emphasized the importance of adhering to constitutional provisions in such unprecedented circumstances. Achari stressed that being sworn in as a Member of Parliament is an inherent constitutional right.
However, given their current incarceration, Engineer Rashid and Mr. Singh must navigate the procedural hurdles of securing permission from authorities to be escorted to Parliament for the oath-taking ceremony. Upon taking the oath, their return to prison becomes imminent.
To delve into the legalities further, Mr. Achari referenced Article 101(4) of the Constitution, addressing the absence of members from both Houses of Parliament without prior sanction from the Chair. He explained that post-oath, they would correspond with the Speaker, informing them of their inability to physically attend House proceedings. Subsequently, the Speaker would refer their appeals to the House Committee on Absence of Members.
The committee would then deliberate on whether the members should be permitted to remain absent from parliamentary duties. Following this, the Speaker would present the committee’s recommendations for a vote in the House.
In the event of Engineer Rashid or Mr. Singh facing conviction and imprisonment for a minimum of two years, they would forfeit their seats in the Lok Sabha immediately, in accordance with the Supreme Court’s 2013 verdict, which stipulates the disqualification of MPs and MLAs under such circumstances. This ruling invalidated section 8(4) of the Representation of the People Act, which previously granted convicted MPs and MLAs a three-month window to challenge their convictions.
In the Baramulla seat, jailed leader Abdul Rashid Sheikh, also called, Engineer Rashid won against the National Conference leader Omar Abdullah and PC President Sajad Gani Lone.
This was the first election of Jammu and Kashmir as a UT since it was a part of the State of Jammu and Kashmir until 2019, when the special status of the State was revoked and it was divided into two Union Territories (Jammu and Kashmir and Ladakh) under the Jammu and Kashmir Reorganisation Act, 2019.
The General Elections were also the first major poll since the elected State Assembly was dissolved; the special status of the province abrogated by the BJP-led Union government; the Valley was subjected to months of Internet shutdowns.
The region recorded the highest voter turnout in the last 35 years, according to the Election Commission. The Union Territory voted in the six phases of the Lok Sabha election.