Explained | What happens when jailed leaders win elections

Jailed leaders Amritpal Singh and Engineer Rashid, who contested the Lok Sabha elections as independents and won, now have a constitutional mandate despite being in prison.

Will they take oaths as MPs? What happens next? We explain.

What are the charges?

Two-time MLA and Jammu and Kashmir Awami Ittehad Party founder Engineer Rashid, who contested from the Baramullah seat and won against former Chief Minister Omar Abdullah, has been jailed for the past five years. He was arrested in 2019 under the Unlawful Activities Prevention Act (UAPA), on allegations of money laundering linked to terror funding activities.

As for Amritpal Singh, the Waris Punjab De chief was arrested in 2023 under the National Security Act (NSA) after he went absconding amid a crackdown against his Sikh separatist unit. He has remained incarcerated in a prison in Assam's Dibrugarh since.

What happens when jailed leaders win polls?

Despite being in prison, victory in the Lok Sabha elections means that both Amritpal and Rashid have a mandate as parliamentarians, which starts with them taking oath.

While it's not explicitly spelled out in the Constitution, there have been earlier instances when jailed leaders have been allowed to take oath on temporary parole, with a recent instance being that of AAP leader Sanjay Singh, who was granted permission by a court to take oath as Rajya Sabha member for a second term, despite being in prison.

Earlier, in 2021, a similar arrangement was made for Akhil Gogoi, who was allowed to take oath as a member of the Assam Legislative Assembly despite being in prison.

Another instance was in 1977, when George Fernandes, who was in prison during the Emergency, won, and was released from prison a day before his oath-taking ceremony.

So what happens next?

While leaders in the past have been granted temporary parole to take oath, this leave is not the same as regular bail.

Therefore, after taking oath, a jailed legislator is required to provide written communication to the Speaker, declaring their inability to attend the proceedings of the Parliament. This is important because, as per Article 101(4) of the Constitution, an MP's seat falls vacant if they are absent from all meetings for over 60 days.

Jailed lawmakers can further move court if they seek to attend a Parliament session or cast a vote on something being discussed in the Parliament.

All the above holds, except in cases where jailed lawmakers are convicted and sentenced for two or more years. In such cases, they are disqualified from Parliament.