New Lok Sabha to have two MPs in jail; what the rule book says

Two candidates currently in prison on terror charges emerged winners in the just-concluded parliamentary elections, giving rise to an unusual situation for the 18th Lok Sabha to be formed in the coming days.

While the law will keep them from attending the proceedings of the new House, they do have the Constitutional right to take oath as members of Parliament.

The Election Commission declared the results of the Lok Sabha polls on Tuesday. While 31-year-old radical Sikh preacher Amritpal Singh won Punjab's Khadoor Sahib seat as an Independent, terror financing accused Sheikh Abdul 'Engineer' Rashid of the Awami Ittehad Party emerged victorious from Jammu and Kashmir's Baramulla seat, securing over 4.72 lakh votes to defeat former J&K chief minister Omar Abdullah by a margin of over 2.04 lakh votes.

Rashid has been lodged in Tihar Jail since 9 August 2019 on charges of terror financing, while Singh was arrested in April 2023 under the National Security Act and sent to Dibrugarh prison in Assam.

The question now arises if these jailed newly elected MPs will be allowed to take the oath, and if yes, how?

Explaining the legalities involved, Constitution expert and former Lok Sabha secretary-general P.D.T. Achari emphasised the importance of following the Constitutional provisions in such cases.

Being sworn in as an MP is a Constitutional right, he said. But because they are currently in prison, Rashid and Singh must seek permission from authorities to be escorted to Parliament for the oath-taking ceremony. Once they have taken the oath, they will have to return to prison.

To further explain the legalities, Achari cited 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 said once they have taken oath, they will write to the Speaker, informing him or her about their inability to attend the House. The Speaker will then refer their requests to the house committee on absence of members.

The committee will recommend whether the member should be allowed to remain absent from House proceedings. The recommendation is then put to vote in the House by the Speaker.

If Rashid or Singh are to be convicted and jailed for a minimum of two years, they would lose their seats in the Lok Sabha immediately 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 three months to appeal against their convictions.