Amritpal Singh, Er Rashid Won Lok Sabha Polls From Jail But How Will They Work?

Will they get interim bail for taking oath, will their cases be fast-tracked and what if they get convicted? Read on

The Lok Sabha election results, declared earlier this week, have delivered a bolt from the blue in many aspects, including the Congress’ comeback.  

According to the Election Commission, the BJP has bagged 240 seats – falling short of the majority mark of 272 – while the Congress has won 99, upping their 2019 tally by 42 seats. In addition, seven Independents have been elected to the Lok Sabha this time around, of which, two contested the elections from prison.  

The first one is Abdul Rashid Sheikh, also known as Engineer Rashid, who won from the Baramulla constituency in Jammu and Kashmir. He defeated National Conference leader Omar Abdullah by a margin of over two lakh votes.  

The second one is Sikh leader and ‘Waris Punjab De’ chief Amritpal Singh. Amritpal won from Punjab’s Khadoor Sahib constituency by a margin of 1.97 lakh votes.

While Rashid was arrested under the Unlawful Activities (Prevention) Act (UAPA) and has been incarcerated in Delhi’s Tihar Jail since four-and-a-half years, Amritpal was arrested in April last year under the National Security Act (NSA) and is lodged in Assam’s Dibrugarh Jail.  

Even as both the leaders remained in confinement, each of their families took it upon themselves to campaign for the elections in their respective constituencies.  

But the question that now arises is how these leaders will fulfill their duties as elected Members of Parliament (MPs) while being in jail – will they get interim bail for taking oath, will their cases be fast-tracked and what if they get convicted? The Quint speaks to legal experts to answer these questions: 

But First, Who Is Engineer Rashid? 

Rashid was arrested by the National Investigating Agency (NIA) in August 2019 – in the aftermath of the abrogation of Article 370 in J&K – for his alleged links to a case related to funding terror activities in Kashmir. He has been in Tihar jail ever since. He was one of the first mainstream politicians to be booked under various sections of the stringent anti-terror law.  

The 56-year-old contested from the Baramulla parliamentary constituency in Kashmir on a ticket of the Awami Ittehad Party (AIP), whose election symbol was a pressure cooker. AIP office bearers had filed the nomination papers on Rashid’s behalf before the Returning Officer.  

“According to Representation of the People Act, 1951 does not debar undertrials from contesting elections or holding public office,” Yashaswini Basu, who works with Vidhi Centre For Legal Policy, told The Quint. However, incarcerated candidates are not allowed to cast their vote as per the Act.  

Rashid was first elected to the Jammu and Kashmir Legislative Assembly in 2008, when he had won as an Independent from the Langate seat in Kupwara district. He was re-elected from the seat in 2014.

He had also contested the 2019 Lok Sabha elections from Baramulla as an Independent but lost to JKNC’s Akbar Lone by a margin of over 31,000 votes.  

His 21-year-old son Abrar campaigned using the slogan “Your vote is for my innocent father” and “Jail ka badla vote se (The revenge of imprisonment by a vote)”, Kashmir-based journalists Irshad Hussain and Mubashir Naik had earlier written for The Quint. Abrar even said that since he had no funds to spearhead the election campaign, locals bore the expenditure and mobilised crowds on social media.

Before his arrest, Rashid had been a vocal critic of the Centre’s policies in Kashmir and a propagator of self-determination as a solution to the conflict in the border state.  

In their chargesheet, the NIA accused Rashid and four others of “waging war against Government of India by carrying out terrorist and secessionist activities in the State of Jammu & Kashmir.” 

After his victory, Rashid has moved a Delhi court to seek interim bail to participate in the oath-taking ceremony. Additional Sessions Judge Chander Jit Singh of Patiala House Courts, has in-turn, sought the NIA’s response in the matter, LiveLaw reported.  

And, Who Is Amritpal Singh?

Amritpal Singh, hailing from Jallupur Khera village in Punjab’s Amritsar, had emerged into limelight after he became a part of the 2020 farmers’ protest against the now-repealed farm laws.   

He had been an advocate of Sikh values and spoke against alcoholism and drugs addiction, often dissuading the youth from substance abuse.

Also Read | Amritpal Singh: How a 29-Year-Old From Dubai Rose Dramatically in Sikh Politics

According to The Quint’s ground report from Khera, locals had rendered their support to Amritpal for this very reason. "Amritpal will become a Member of Parliament (MP) and raise the issue of drugs. That will help in dealing with the drugs problem in Punjab,” a local stated in the report. 

The 30-year-old, however, has at least half a dozen criminal cases against him. According to a report in The Hindu, Amritpal is facing various charges under the Indian Penal Code (IPC), including attempt to murder, attack on police personnel, and spreading disharmony among classes. The stringent NSA was invoked to nab him.

He was arrested by the Punjab police on 23 April 2023 from Rode village in Moga district after a month-long crackdown against his organisation ‘Waris Punjab De’. Rode is the native village of Jarnail Singh Bhindranwale, the Sikh militant who was killed by the Indian Army during Operation Blue Star in June 1984.  

After his arrest, Amritpal was taken on a special flight from Bathinda to Dibrugarh, where he is imprisoned. Amritpal’s lawyer Rajdev Singh Khalsa has reportedly sought bail on Thursday, 6 June.

Will Undertrial MPs Get Bail to Take Oath?

“In case an undertrial has won the election, he/she can seek temporary bail for taking oath as an MP but the relevant state/central government or the court is not compelled to grant it,” said senior Supreme Court advocate Sanjay Hegde.  

A recent example would be that of Aam Aadmi Party (AAP) MP Sanjay Singh, who was on 19 March brought under security cover to Rajya Sabha Chairman Jagdeep Dhankar’s office to administer oath when he was re-elected from the Upper House. He was taken back to jail soon after. 

However, seeking bail may be challenging for Rashid, who faces charges under the UAPA. Section 43D (5) of the Act allows a court to deny bail if there were reasonable grounds to believe that the case against the accused was prima facie true. 

On being asked if seeking bail was tougher for Rashid than for Amritpal, Basu said that one’s right to bail cannot be differentiated on the nature of charges but is ultimately the prerogative of the court.  

Hegde, however, added that since NSA allows preventive detention and is not punishment for what one is accused of, “it can always be relaxed.” 

How Will MPs Fulfill Their Duties From Jail?

Assuming the undertrial MPs get temporary bail for oath-taking, will they have to apply for bail each time they attend the Parliament session?  

Article 101(4) of the Indian Constitution states that if a member of the Lok Sabha is absent from all meetings for a period of 60 days, his/her seat will be declared vacant.  

“In such a case, the undertrial can seek interim bail or permission from the Lok Sabha speaker to be absent from the House. Declaring the seat vacant would necessitate bypolls, but since both Rashid and Amritpal won with a decent margin, chances are people would elect for them again. Hence, this wouldn’t be the pragmatic way forward,” Alok Prasanna Kumar, Senior Resident Fellow at the Vidhi Centre for Legal Policy, told The Quint. 

Basu added that the Representation of People Act, 1951 does not debar undertrials from holding public office just like it does not compel elected representatives to give up on their title in case they are under trial.  

“An example of this would be Delhi Chief Minister Arvind Kejriwal, who was arrested on 21 March in connection with the alleged liquor scam, but he continued to run his government from behind bars,” Basu explained.

Will Their Cases Be Fast-tracked? 

On being asked if their cases can now be fast-tracked or transferred to the MP/MLA special courts, Kumar said, “Since their cases are already being heard by special trial courts, they cannot be transferred to MP/MLA courts, as per the directions of the Supreme Court.”  

Basu added that the cases against Rashid and Amritpal have been registered when they were not elected MPs. However, she said that the cases may be heard with greater urgency citing Article 101(4) of the Constitution.  

“However, expediting the case may also prove to be a double-edged sword. If the undertrials are convicted with more than two years of jail term, they will be disqualified and barred from contesting elections.”

Yashaswini Basu, Vidhi Centre For Legal Policy

There have been precedents of leaders contesting elections and winning in the past too. Hegde recalled the victory of George Fernandes in 1977 Lok Sabha elections. Fernandes had been arrested in the Baroda dynamite case and was charged under the Maintenance of Internal Security Act (MISA). He won the Muzaffarpur seat in Bihar while being in jail during Emergency. Fernandes was, however, released from prison ahead of the oath-taking ceremony.  

Another example is that of Assamese RTI activist Akhil Gogoi, who was arrested in 2019 for his participation in protests against the Citizenship Amendment Act (CAA). He contested Assembly elections from Sibsagar seat in 2021 and won. He too was allowed to temporarily leave prison for the swearing-in ceremony.