In a stunning twist of events, the recently concluded Lok Sabha elections in India saw the victory of two candidates embroiled in legal battles and serving prison sentences on terror-related charges. Abdul Rashid Sheikh, famously known as “Engineer Rashid,” emerged victorious from Kashmir’s Baramulla seat, while jailed pro-Khalistan leader Amritpal Singh secured the Khadoor Sahib constituency in Punjab. Their triumphs have sparked debates surrounding the legality of their candidacies, their ability to function as legislators, and the intricate legal processes they must navigate.
Amritpal Singh, leader of the outfit Waris Punjab De, has been incarcerated in Assam’s Dibrugarh jail under the National Security Act (NSA) since his arrest by the Punjab Police. Similarly, Engineer Rashid has been facing charges of terror funding under the Unlawful Activities (Prevention) Act, 1967 (UAPA), leading to his confinement in Delhi’s Tihar Jail. Despite their legal predicaments, both secured significant victories in the Lok Sabha elections.
Indian law does not explicitly prohibit undertrials from contesting elections. The Representation of the People Act (RPA), 1951, disqualifies individuals from contesting elections only upon conviction and sentencing to imprisonment for two years or more. However, a 2013 amendment to the RPA allows even incarcerated individuals to contest elections, provided their names remain on the electoral rolls.
The right to contest elections, as established by the Supreme Court, is not a fundamental or common law right but a statutory one, subject to certain restrictions. Undertrials retain their right to contest elections until convicted, maintaining the presumption of innocence until proven guilty—a cornerstone of India’s judicial system.
Historically, there have been instances where individuals contested and won elections while incarcerated, setting precedents for Rashid and Singh’s victories. During the Emergency (1975-1977), prominent leaders like Jayaprakash Narayan and George Fernandes were jailed, with Fernandes even contesting and winning the 1977 Lok Sabha elections from jail.
In more recent times, individuals like Mukhtar Ansari, Kalpanath Rai, and Mohammad Shahabuddin have won elections while incarcerated. These cases highlight the resilience of India’s democratic framework, allowing for electoral participation even amidst legal challenges.
Now elected as legislators, Rashid and Singh must fulfill their constitutional mandate by taking the oath of office. However, their incarceration complicates this process, requiring judicial intervention. They may seek temporary bail or custody parole to attend the oath-taking ceremony in Parliament, ensuring compliance with Article 99 of the Constitution.
Furthermore, Article 101(4) of the Constitution comes into play, stipulating that prolonged absence from House proceedings without permission may lead to the declaration of their seats as vacant. Rashid and Singh must inform the Speaker of their inability to attend House sessions, with the matter subsequently referred to the House Committee on Absence of Members for deliberation and a potential vote in the House.
The electoral victories of Rashid and Singh underscore the unique aspect of India’s democracy, allowing for the participation of individuals in custody, provided they are undertrial. However, their cases raise pertinent questions about the intersection of law, politics, and ethics within India’s vibrant democracy.
As Rashid and Singh prepare to embark on their legislative journeys, their legal battles and electoral triumphs serve as a reminder of the complexities inherent in India’s legal and political landscape. Their cases will continue to spark conversations about the balance between upholding democratic principles and ensuring accountability within the framework of the law.
The saga of Rashid and Singh highlights the resilience of India’s democratic institutions, navigating the challenges posed by incarcerated legislators while upholding the principles of justice and electoral integrity. As they take their oaths and assume their parliamentary duties, their journey will undoubtedly remain a subject of scrutiny and reflection in India’s evolving democratic narrative.
