Jailed candidates can take oath after winning Lok Sabha poll
Saurabh Malik
Chandigarh, June 6
Jailed candidates can take oath after winning the parliamentary elections, but only with the permission of the court concerned. The issue has surfaced as two candidates, currently behind bars, including “Waris Punjab De” head Amritpal Singh, emerged victorious in the recently concluded elections.
Article 99 of the Constitution requires every Member of Parliament to take an oath or affirmation before taking the seat. The provision does not explicitly disqualify imprisoned individuals from taking the oath.
Additional Solicitor-General of India and an expert on constitutional and electoral affairs Satya Pal Jain asserts permission becomes mandatory, when the candidate concerned is in judicial custody. “Any person in jail and elected to Parliament has to seek the court’s permission,” he says.
Elaborating on the procedure, Jain says the oath can be administered to the candidates on the floor of the House or in the chamber, depending upon the discretion of the Speaker or the pro-tem Speaker as the case may be.
Punjab and Haryana High Court’s former Judge, Justice Mahesh Grover, says Section 8 of the Representation of the People Act makes it clear that individuals convicted of certain offences are disqualified from contesting elections. But, if a candidate is already in jail and is subsequently elected, the Act does not explicitly prevent him from taking oath or attending parliamentary sessions.
The Supreme Court of India has addressed related issues in various rulings. In the Lily Thomas versus the Union of India case, the court ruled that MPs and MLAs convicted of crimes attracting a minimum two-year imprisonment would be immediately disqualified from holding their seats. But the ruling applies only after conviction and not during pre-trial detention or before conviction.
Referring to “Lok Prahari versus the Union of India” case, Additional Solicitor-General of India and Haryana’s former Advocate-General Mohan Jain says the Allahabad High Court had ruled that a person under lawful detention, who is yet to be convicted, does not lose his fundamental rights, including the right to represent his constituency.
An individual remains an MP unless disqualified, once the oath is taken, Jain adds. Attending parliamentary proceedings, again, will require permission from the judiciary. Courts may allow temporary release for attending sessions, considering the nature of the charges.
“While constitutional and statutory provisions do not outright prohibit jailed winners from taking the oath or attending Parliament, practical implementation hinges on judicial discretion. Courts balance the rights of the individual with public interest and the gravity of the charges,” Justice Grover says.
No time frame
Neither the Constitution nor any law prescribes a specific time frame for taking oath. But attending parliamentary sessions requires judicial permission post-oath. Satya Pal Jain says the Constitution stipulates that a seat can be declared vacant, if a member does not attend a session for 60 days. As such, nod from the Speaker becomes must
