How does a candidate who wins an election from jail take oath? Know what the rule says

Ananya Shroff
3 Min Read

New Delhi: Two candidates jailed on terrorism charges have emerged victorious in the parliamentary elections, creating an unusual situation for the 18th Lok Sabha. Though under the law they will not be allowed to participate in the proceedings of the new House, they still have the constitutional right to take oath as members of Parliament. The Election Commission declared the results of the Lok Sabha elections on Tuesday. Hardline Sikh preacher Amritpal Singh won the Khadoor Sahib seat in Punjab, while Sheikh Abdul Rashid alias Engineer Rashid, accused of funding terrorism, won the Baramulla seat in Jammu and Kashmir. Engineer Rashid has been lodged in Tihar Jail since August 9, 2019, on charges of funding terrorism. Singh was arrested under the National Security Act in April 2023 and sent to Dibrugarh jail in Assam. Now the question arises whether these newly elected MPs lodged in jail will be allowed to take oath, if yes, then how.

What do constitutional experts say?

Clarifying the legal aspects, constitutional expert and former Lok Sabha secretary general PDT Acharya stressed the importance of following constitutional provisions in such cases. He said taking oath as a member of Parliament is a constitutional right. Acharya said since they are currently in jail, Engineer Rashid and Singh will have to seek permission from the authorities to be taken to Parliament for the swearing-in ceremony. They will have to go back to jail after taking the oath, he said. To further clarify the legal aspects, Acharya cited Article 101 (4) of the Constitution, which deals with the absence of members from either House of Parliament without the prior permission of the Speaker. He said after taking the oath, they will write to the Lok Sabha Speaker informing them of their inability to attend the House, following which the Speaker will forward their requests to the Committee on Absence of the House.

Who will decide?

The committee will decide whether the member should be allowed to remain absent from the proceedings of the House. The Speaker will then put the recommendation to vote in the House. If Engineer Rashid or Singh are convicted and sentenced to at least two years, they will immediately lose their seats in the Lok Sabha, according to a 2013 Supreme Court verdict that disqualified MPs and MLAs in such cases. The verdict had struck down Section 8(4) of the Representation of the People Act, which gave convicted MPs and MLAs three months to appeal against their convictions.

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