Copyright infringement not intended

Picture Courtesy: https://indianexpress.com/article/explained/explained-law/amritpal-engineer-rashid-win-jail-9373650/

Context: Newly elected Members of Parliament, who are in jail can take oath but face hurdles attending sessions and require court approval for participation.

Details

• When individuals like Amritpal Singh in Punjab and Engineer Rashid in Jammu & Kashmir win elections while being in jail, their status as elected representatives raises important procedural and legal questions.
• Winning an election while in prison is not new in India. Historical instances, such as George Fernandes' election during the Emergency, set a precedent for handling such situations.

Legal Background

• Amritpal Singh is detained under the National Security Act (NSA), which allows for preventive detention without formal charges for up to 12 months.
• Engineer Rashid is incarcerated under the Unlawful Activities Prevention Act (UAPA) in connection with alleged terror funding.

Taking Oath as MPs

• Constitutional Mandate: Winning the election gives Amritpal Singh and Engineer Rashid a constitutional mandate to serve as Members of Parliament (MPs).
• Temporary Parole for Oath: While the Indian Constitution does not explicitly outline the process for jailed lawmakers taking oath, courts have previously granted temporary parole for this purpose. This allows them to fulfil the initial requirement of their parliamentary role.

Past Instances of Jailed Lawmakers Taking Oath

• Sanjay Singh (2024): Granted temporary parole to take oath as a Rajya Sabha MP.
• Akhil Gogoi (2021): Allowed by an NIA court to leave prison temporarily to take oath as a member of the Assam Legislative Assembly.
• George Fernandes (1977): Elected from jail during the Emergency and later released to take the oath.

Duties and Attendance

• Post-Oath Responsibilities: Taking the oath does not equate to being released on bail. It's a one-time allowance to perform their duty as elected representatives.
• Absence from Parliament: Article 101(4) of the Constitution states that if an MP is absent for more than 60 days from all meetings without permission, their seat can be declared vacant. Therefore, the jailed MPs need to notify the Speaker of their inability to attend sessions.
• Court Permissions for Parliamentary Duties: To attend sessions or vote in Parliament, jailed lawmakers must seek court permission. This is not automatically granted and typically involves legal processes where they must justify their need to be present.

Disqualification Criteria

• Conviction and Sentencing: According to the law, an MP is disqualified from Parliament only if convicted and sentenced to two or more years in prison.

Practical Challenges

• Security Arrangements: If allowed to attend parliamentary sessions or take the oath, security measures are put in place to ensure their safe and orderly participation.
• Role and Representation: While being in jail limits their active participation, these MPs still represent their constituencies and can perform some duties through communication with party colleagues and parliamentary staff.

Conclusion

• Amritpal Singh and Engineer Rashid's election victories from jail highlight the complexities of legal and parliamentary procedures in India. They will likely be granted temporary parole to take their oaths, but their ongoing participation in parliamentary duties will depend on court permissions and security arrangements. Despite these challenges, their constitutional mandate as elected representatives remains intact unless they are convicted and sentenced to significant prison terms.

Source:

Indian Express

PRACTICE QUESTION Q. The Indian Constitution establishes a federal system with a strong central government. How can India ensure a healthy balance between empowering states and maintaining national unity, particularly in the face of rising regionalism and potential ethnic tensions?