Can Jailed Amritpal Singh, Engineer Rashid Take Oath As MPs? What Does The Law Say?

One of the many interesting outcomes of the Lok Sabha Election is the victory of pro-Khalistani separatist Amritpal Singh and Sheikh Abdul Rashid also known as Engineer Rashid, both in jail on serious charges that are being probed by the National Investigation Agency (NIA).

According to the results declared on June 4, Singh won from Khadoor Sahib seat in Punjab while Rashid emerged victorious from the Baramulla constituency in Kashmir. Singh secured a significant lead with 4,04,430 votes, while his closest contender, Congress candidate Kulbir Singh Zira, garnered 2,07,310 votes. Rashid, who received 4,70,000 votes won with an overwhelming margin against former chief minister Omar Abdullah.

Can They Take Oath?

Taking oath is the first step in fulfilling the role of a parliamentarian though it has not been explicitly spelt out in the Constitution. Once they have taken the oath, they will have to return to the jail.

The Article 101 (4) of the Constitution deals with the absence of members from both Houses of Parliament without prior sanction of the Chair. After taking the oath, Rashid and Singh will have write to the Speaker informing him/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 then recommends whether the member should be allowed to remain absent from House proceedings or not. The recommendation is then put to the vote of 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.

Has This Happened Before?

Aam Aadmi Party (AAP)’s Sanjay Singh was granted permission for his swear-in ceremony as a Rajya Sabha MP in March. Singh, who was then imprisoned in Tihar on money laundering charges, was granted permission by a trial court which directed the jail superintendent to ensure that he was taken to Parliament and brought back to the jail with adequate security.

In 2021, an NIA court allowed Akhil Gogoi to temporarily leave prison to take oath as a member of the Assam Legislative Assembly. Gogoi won from Sibsagar, Assam.

The most famous election victory from prison was in 1977, when trade unionist George Fernandes was elected from the Muzaffarpur seat while in jail during the Emergency. He was released from prison before the oath ceremony.

What Amritpal Singh’s Lawyer Said?

Rajdev Singh Khalsa, representing Amritpal Singh, mentioned Singh’s efforts to combat drug abuse in Punjab, and said he would be pressing for his bail.

“The government will have to grant them relief because there is no alternative; the government will be compelled to do so, both the BJP government and the AAP government. Amritpal Singh was making Punjab drug-free. The people have approved that his arrest was illegal and immoral," Khalsa said, as quoted by ANI.

What are the Charges Against Rashid and Singh?

Amritpal Singh has been in jail in Dibrugarh, Assam under the National Security Act (NSA) since March 2023. The NSA is a preventive detention law which allows the government to detain individuals for up to 12 months without pressing formal charges.

Rashid has been in Delhi’s Tihar jail since 2019 facing charges under the Unlawful Activities Prevention Act (UAPA) in an alleged terror-funding case. A former MLA, Rashid contested in the election on a Awami Ittehad Party ticket.