Jailed but elected: Decoding Rashid, Amritpal Singh’s Lok Sabha victories

In a remarkable turn of events, Sheikh Abdul Rashid and Amritpal Singh have won their respective Lok Sabha seats while in custody on terror-related charges.

Rashid, also known as Engineer Rashid, won the Jammu and Kashmir constituency of Baramulla. Rashid, currently lodged in Delhi’s Tihar jail on charges of financing terrorism, defeated Omar Abdullah, the leader of the National Conference, by more than 200,000 votes. On the other hand, Singh, a radical Sikh preacher who is in Assam’s Dibrugarh jail, won the seat in Punjab’s Khadoor Sahib, beating the Congress contender, Kulbir Singh Zira, by a wide majority of 197000 votes.

This development brings to light the legal intricacies and historical precedents surrounding the ability of incarcerated persons to contest and win elections in India.

Legal framework

Indian law does not explicitly prohibit undertrials from contesting elections. According to the Representation of the People Act (RPA), 1951, a person is disqualified from contesting elections if they are convicted of an offence and sentenced to imprisonment for two years or more.

While a lawfully imprisoned person is prohibited from voting under Section 62(5) of the RPA (if they are confined in a prison, whether on a sentence of imprisonment or transportation or otherwise or if they are in the lawful custody of the police), a 2013 amendment to the Act states that the person will still be considered an elector if their name is on the electoral rolls. The amendment was carried out to overcome July 10, 2023, Supreme Court judgment, which ruled that anybody in police custody or jail will not be able to contest elections because the person ceases the right to vote as an “elector”. The amended provision, however, allows even an imprisoned person to contest elections.

To be sure, the Supreme Court has clarified through a series of judgments that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute, which is subject to several restrictions, including a valid order of police or judicial custody or detention. Therefore, an individual cannot claim that he has a right to contest an election and that certain valid stipulations violate fundamental rights. However, undertrials, who are yet to be convicted, retain their mandate to contest elections, provided they secure necessary permissions from courts that have their custody. This principle is rooted in the presumption of innocence until proven guilty, a cornerstone of the Indian judicial system.

Section 8(3) of the RPA states that a person convicted of an offence and sentenced to imprisonment for at least two years is disqualified from contesting elections for six more years after their release. However, this does not apply to undertrials, who have not been convicted.

In Shibu Soren Vs Dayanand Sahay & Ors (2001), the Supreme Court maintained that the right to contest an election and to be a member of the legislature is a very important right in any democratic setup. “A practical view not [a] pedantic basket of tests must, therefore, guide the courts to arrive at an appropriate conclusion. A ban on candidature must have a substantial and reasonable nexus to the object sought to be achieved namely, elimination of or in any event reduction of [the] possibility of misuse of the position which the concerned legislator holds or had held at the relevant time,” said the judgment.

In K Prabhakaran Vs P Jayarajan (2005), the Supreme Court held that the disqualification under Section 8(3) of the RPA applies only after a person is convicted and sentenced. Until then, they are presumed innocent and retain their electoral rights. “It is trite that the right to contest an election is a statutory right. In order to be eligible for exercising such right the person should be qualified in the terms of the statute. He should also not be subject to any disqualification as may be imposed by the statute making provision for the elective office. Thus, the legislature creating the office is well within its power to prescribe qualifications and disqualifications subject to which the eligibility of any candidate for contesting for or holding the office shall be determined,” this judgment said.

The landmark Supreme Court Judgment in Lily Thomas Vs Union of India (2013) ruled that MPs, MLAs, and MLCs convicted of offences and sentenced to imprisonment of two years or more will be immediately disqualified, reaffirming the principles laid down in the RPA. The verdict struck down Section 8(4) of the RPA, which provided for a three-month window for the convicted legislator to file an appeal during which the disqualification would not take effect.

Historical precedents

There have been some notable instances in Indian history where individuals have contested and won elections while in jail, providing precedents for Rashid and Singh’s recent victories.

During the Emergency (1975-1977), many Opposition leaders were jailed, including Jayaprakash Narayan and George Fernandes, who were prominent figures in the movement against the Indira Gandhi government. While Narayan did not contest elections and his imprisonment galvanised public opinion and contributed to the victory of the Janata Party in the 1977 elections, Fernandes contested the 1977 Lok Sabha elections from jail. He was arrested under the Maintenance of Internal Security Act (MISA) but won from the Muzaffarpur constituency in Bihar with a significant majority.

While incarcerated in 1996, Mukhtar Ansari, a don-turned politician who passed away in March, ran on the Bahujan Samaj Party ticket for the Uttar Pradesh Mau assembly seat and won. Kalpanath Rai, the former Union minister who was imprisoned in 1996 due to a TADA case, ran from prison for the 1996 Lok Sabha election and won the Ghosi seat.

Another gangster-turned-politician, Mohammad Shahabuddin, emerged victorious from jail to win the Siwan seat in Bihar in 1999. Later, he was found guilty of several murders and given a life sentence, disqualifying him as a lawmaker.

Assamese RTI activist Akhil Gogoi ran and won the Sibsagar seat in the 2021 Assam assembly elections while being lodged in jail on charges of sedition and inciting violence during the anti-Citizenship (Amendment) Act movement.

In the Uttar Pradesh assembly elections of 2022, veteran Samajwadi Party leader and nine-time Rampur MLA Azam Khan, still incarcerated, won the Rampur assembly seat. Later, Khan lost his eligibility as a legislator after being found guilty in a 2019 case involving suspected hate speech.

Current scenario, oath

Rashid and Singh’s victories, while under custody, underscore the application of the legal principles enunciated above. Both individuals are undertrials, which means they are not disqualified from contesting elections.

Once elected, the next step for Rashid and Singh is to take the oath of office, which is a constitutional requirement for all members of Parliament. For this, the court may grant temporary bail to allow the elected representatives to attend the oath-taking ceremony in Parliament. Alternatively, the court can facilitate their swearing-in by sending them to Parliament in police custody only for the oath ceremony and the Parliament security can escort them inside. They will have to go back to the jail after the ceremony is over.

Rashid has approached a Delhi court seeking interim bail, or in alternative custody parole, to take the oath and perform other ancillary functions as a Member of Parliament. On Thursday, the court sought a response from the National Investigation Agency (NIA), scheduling the next hearing on Friday (June 7).

In the present scenario, Article 101(4) of the Constitution will also come into play since Rashid and Singh may not be able to attend the House proceedings owing to their incarceration. The provision states that if for 60 days a member of either House of Parliament is absent from all meetings without permission of the House, the House may declare his seat vacant. Therefore, Rashid and Singh will have to notify the Speaker in writing of their unavailability to attend House proceedings after taking the oath. The Speaker will then place their request before the House Committee on Absence of Members from the Sittings of the House, which will recommend whether to allow the members to continue missing from House sessions. This Committee consists of 15 members nominated by the Speaker. The chairperson of the Committee is appointed by the Speaker from amongst the members of the Committee. The House will next vote on the recommendation, as proposed by the Speaker.

The electoral triumphs of Rashid and Singh highlight a unique aspect of India’s democratic framework, which upholds the right to contest elections even for those in custody, as long as they are undertrial. While the two get ready to take their oaths, their cases will continue to spark conversations about the intersection of law, politics, and ethics in India’s vibrant democracy.