Amritpal Singh in Punjab, Engineer Rashid in J&K win from jail: What happens next

Even if in prison, election winners still carry the constitutional mandate to serve as parliamentarians. Here is how that works.

Amritpal's father Tarsem Singh on the campaign trail (left), Engineer Rashid inside the J&K Assembly in 2017. (PTI, Express Archive)

Results of the Lok Sabha polls have thrown up two unusual winners — Waris Punjab De chief Amritpal Singh from Punjab’s Khadoor Sahib, and Engineer Rashid from Jammu and Kashmir’s Baramulla — both of whom are currently in prison on serious charges that are being probed by the National Investigation Agency.

What happens next? How will they take oath as MPs?

Serious charges

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.

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

Taking oath

The duo’s election victory means that they now have a constitutional mandate as parliamentarians, despite being in prison.

Taking oath is the first step in fulfilling their role as parliamentarians. Although this is not explicitly spelt out in the Constitution, there have been past instances in which jailed lawmakers are granted temporary parole to take oath.

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In March, Aam Aadmi Party leader Sanjay Singh, who was then imprisoned in Tihar on money laundering charges, was granted permission by a court to take oath as Rajya Sabha MP for a second term. A trial court directed the jail superintendent to ensure that he is taken to Parliament with adequate security, and brought back to the jail.

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

The most famous election victory from prison, however, came 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.

Duties as a lawmaker

Being allowed to take oath is not the same as being released on bail. It is akin to a special parole for a day.

The jailed lawmaker has to then write to the Speaker that she will not be able to attend the proceedings. This is important since Article 101(4) of the Constitution states that if an MP is absent for over 60 days from all the meetings without permission, then her seat would be declared vacant.

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For attending a Parliament session or to cast a vote in the Parliament, the lawmaker will have to move court for permission.

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However, only a conviction and a sentence of two or more years will lead to disqualification from Parliament.

Apurva Vishwanath

Apurva Vishwanath is the National Legal Editor of The Indian Express in New Delhi. She graduated with a B.A., LL. B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. She joined the newspaper in 2019 and in her current role, oversees the newspapers coverage of legal issues. She also closely tracks judicial appointments. Prior to her role at the Indian Express, she has worked with ThePrint and Mint. ... Read More