TAG: GS 2: POLITY
THE CONTEXT: In the 18th Lok Sabha elections, the two Members of Parliament emerged victorious while being confined in the prison. Amritpal Singh from Punjab’s Khadoor Sahib and Sheikh Abdul Rashid, popularly known as Engineer Rashid from Baramulla, Kashmir were elected as Members of Parliament after contesting as independent candidates.
EXPLANATION:
- In democratic societies, the power of the ballot is unparalleled, as encapsulated by the quote, “The ballot is more potent than the most powerful gun.”
- This principle was highlighted in the Anoop Baranwal v. UOI case, emphasizing the importance of free and fair elections.
- This analysis explores the legal landscape concerning individuals who are imprisoned yet manage to win elections, as demonstrated by the cases of Amritpal Singh and Sheikh Abdul Rashid in the 18th Lok Sabha elections.
Case Studies: Amritpal Singh and Sheikh Abdul Rashid
- Amritpal Singh
- Amritpal Singh, head of the organization Waris Punjab De, was arrested in April 2023 under the National Security Act, 1980, which allows for preventive detention for up to 12 months without formal charges.
- Despite being detained, Singh successfully contested and won a seat as an independent candidate from Punjab’s Khadoor Sahib.
- Sheikh Abdul Rashid
- Sheikh Abdul Rashid, popularly known as Engineer Rashid, has been in jail since 2019, charged by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act in an alleged terror funding case.
- Rashid, too, managed to win a parliamentary seat from Baramulla, Kashmir, as an independent candidate.
Legal Framework for Contesting Elections
- Representation of the People Act (RP Act)
- Section 62(5) of the RP Act prohibits imprisoned individuals from voting.
- However, a 2013 amendment allows these individuals to remain on electoral rolls.
- Notably, there is no prohibition on contesting elections for those who are imprisoned and awaiting trial.
- Supreme Court Rulings
- In 2018, a Constitution Bench of the Supreme Court declined to disqualify candidates with criminal charges from contesting elections, leaving the decision to the Parliament.
- In 2022, the Supreme Court reiterated that the right to contest elections is a statutory, not fundamental, right.
- High Court Clarifications
- Various High Courts have clarified that contesting elections from jail does not confer special immunity from the law.
- For instance, the Madhya Pradesh High Court, in October 2023, emphasized that the right to contest elections is not a fundamental right.
- Similarly, the Delhi High Court, in the Election Commission of India vs. Mukhtar Ansari case, stated that contesting from jail does not guarantee the right to be released for campaigning.
Attending Parliamentary Proceedings
- Being elected from prison does not grant the right to attend parliamentary proceedings.
- The Delhi High Court, in Suresh Kalmadi’s case (2011), ruled that judicial custody precludes exceptions for parliamentarians to attend sessions.
- The court stressed that parliamentary privileges are meant to facilitate legislative duties, not to exempt legislators from the law.
- The Allahabad High Court, in the case of Raghu Raj Pratap Singh Alias Raja Bhaiya (2003), supported the view that detained legislators have no right to participate in legislative sessions.
- The court highlighted that judicial discretion under Article 226 of the Constitution is paramount in such matters.
Bail for Election Purposes
- While contesting an election can be a factor in granting bail, it cannot be the sole reason.
- The Supreme Court, in the case of Delhi CM Arvind Kejriwal, acknowledged the significance of elections but maintained that bail decisions must consider all circumstances.
- The Punjab and Haryana High Court facilitated Amritpal Singh’s nomination filing, emphasizing the importance of procedural fairness.
- However, bail for campaigning remains a discretionary decision, as illustrated by the Delhi High Court in Mukhtar Ansari’s case.
Disqualification
- An elected member of Parliament is disqualified if convicted and sentenced to two or more years of imprisonment.
- This disqualification extends for six years post-release.
- The Supreme Court, in Lily Thomas v. Union of India (2013), struck down the provision allowing a three-month grace period for convicted legislators to appeal.
- A PIL seeking a lifetime ban on convicted politicians is pending before the Punjab & Haryana High Court.
- The amicus curiae suggested that the current six-year disqualification period is arbitrary and violates Article 14 of the Constitution, proposing permanent disqualification instead.
- Article 101(4) of the Constitution mandates that a parliamentary seat can be declared vacant if a member is absent for 60 days without permission.
- Thus, incarcerated MPs must seek permission to avoid disqualification due to prolonged absence.
