Srinagar- The recent Lok Sabha elections of 2024 have brought an unusual and intriguing scenario into the limelight, with two jailed candidates, Abdul Rashid Sheikh from Baramulla constituency and Amritpal Singh from Khadoor Sahib seat, emerging victorious. In fact, Engineer Rashid has defeated former Jammu and Kashmir Chief Minister Omar Abdullah by a very comfortable margin.
This situation raises several questions. Will they have to give up their seats, or will they be released to fulfil their duties? How would they even take oath?
How were jailed candidates able to contest elections?
Under the Representation of the People Act, 1951, every citizen of India who is at least eighteen years old and ordinarily resident in a constituency is entitled to be registered in the electoral roll for that constituency. However, a person who is detained in prison or legal custody is not considered ordinarily resident in the location of their detention.
Despite this, the law does not prohibit such individuals from contesting elections unless they have been convicted of certain specified offences. Thus, Engineer Rashid and Singh were able to contest the elections while being incarcerated.
It is interesting to note that people who are in jail can not vote since their rights are suspended during the period of imprisonment.
Immediate disqualification on conviction
The Supreme Court of India, in a landmark judgment in 2013, held that Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) would be immediately disqualified from holding their positions upon conviction of a crime.
This decision struck down Section 8(4) of the Representation of the People Act, which previously allowed convicted lawmakers a three-month window to appeal their convictions.
If Engineer Rashid or Singh were to be convicted of their charges, they would lose their seats in the Lok Sabha immediately.
Rashid is in jail under the Unlawful Activities Prevention Act (UAPA). He was a close aide of slain Hurriyat leader and JKPC founder Abdul Gani Lone, father of Sajad Lone. Singh, on the other hand, is a Khalistani leader in jail under the National Security Act (NSA).
Temporary release for taking oath?
Elected representatives who are in jail have often been temporarily released on bail or parole to take their oaths of office. Indian courts have consistently granted such temporary reliefs to ensure that the democratic process is upheld. For example, in 2020, the Allahabad High Court granted parole to Bahujan Samaj Party (BSP) leader Atul Rai to take his oath as a Member of Parliament. Similarly, in 2022, Samajwadi Party MLA Nahid Hasan was released on bail to take his oath as a Member of Legislative Assembly in Uttar Pradesh
Engineer Rashid and Singh may be granted temporary release to take their oaths as members of the Lok Sabha. This ensures that they can formally assume their roles despite their incarceration.
Functioning from jail
The question of whether MPs and MLAs can perform their duties from jail is complex. Historically, there have been instances where jailed elected representatives have continued to discharge their duties from prison. For example, communication channels have been facilitated and meetings have been allowed to ensure that the constituents are represented and the elected duties are carried out.
Jailed MPs and MLAs could rely on their party colleagues, family members, and legal teams to assist in fulfilling their responsibilities. They can communicate directives and remain involved in legislative activities through these intermediaries. However, their ability to participate in parliamentary sessions and committee meetings is severely restricted.
The impact on constituents
The election of jailed candidates raises significant questions about representation and the effectiveness of governance. Constituents of Baramulla and Khadoor Sahib might face challenges in accessing their elected representatives. Although the elected MPs can provide some level of service and representation from jail, their ability to fully engage in parliamentary duties and advocacy is inevitably compromised. (inputs from PTI)
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