By-election in Rampur: How Azam Khan’s disqualification has resulted in a second Assembly election for the seat in less than a year

Khan, the tallest leader of the Rampur area for more than four decades, had won the Rampur Sadar seat in this year’s UP Assembly elections (February-March 2022).

What developments led up to the announcement of the by-election?

On October 27, the Rampur MP-MLA court found Khan guilty of hate speech against Chief Minister Yogi Adityanath and the then DM of Rampur during the Lok Sabha elections of 2019, and sentenced him to three years in jail.

On October 28, the day after Khan was convicted in the hate speech case, the UP Legislative Assembly Secretariat disqualified him and declared the Rampur Assembly seat vacant. (See answer to last question below)

On November 5, the Election Commission of India (ECI) announced the schedule for the by-election to fill the vacancy (and four other vacancies across states), and said polling would be held on December 5. The gazette notification was to be issued on November 10.

On November 9, Khan moved the Supreme Court against the ECI, challenging the announcement of the bypoll when his appeal against his conviction was still pending with the Rampur court.

The Supreme Court directed that the “Additional Sessions Judge, Rampur before whom the appeal has been filed shall pre-pone the hearing of the application for stay of conviction and take it up peremptorily on 10 November 2022 [and] the application…shall be disposed of…on the same day”. The court also directed that “the Gazette notification for declaring the election schedule…may be issued on or after 11 November 2022 depending upon the outcome of the application for stay of conviction”.

On November 10, the Rampur court rejected Khan’s application, after which the EC, noting that the judge “has not granted stay in the matter”, issued a revised schedule, reiterating that the bypoll would be held on December 5, and that votes would be counted on December 8.

What was the 2019 case against Azam Khan?

The 2019 case against Khan was lodged by election official Anil Kumar Chauhan in connection with a speech delivered by Khan in the Milak Vidhan Sabha area in April of that year, during the campaign for the Lok Sabha elections which the SP had contested in alliance with the Bahujan Samaj Party (BSP).

The complaint alleged Khan — who was the SP candidate for the Rampur Lok Sabha seat — had “used foul language for people in Constitutional posts, threatened them, and tried to flare a riot”, and that he had made serious allegations against administrative officials posted in Rampur, Prime Minister Narendra Modi, and Chief Minister Adityanath.

An FIR was lodged against Khan under Sections 153-A (promoting enmity between different groups) and 505(1) (publishing or circulating any statement, rumor or report) of the Indian Penal Code, and Section 125 (promoting enmity between classes in connection with elections) of the Representation of the People Act, 1951.

What happened after the Lok Sabha election?

Khan won the Rampur Lok Sabha seat after securing 52.69 per cent of the vote, defeating Jaya Prada of the BJP by more than 1 lakh votes. However, in early 2020, he was arrested and sent to jail in connection with several cases that had been filed against him since 2017.

Khan was lodged in Sitapur jail when he contested the 2022 Assembly election for the 37-Rampur seat, and won. After winning the Assembly election, Khan gave up his Lok Sabha seat (Rampur). (A by-election to this Lok Sabha seat was held in June 2022, which was won by Ghanshyam Singh Lodhi of the BJP.)

Khan was released from jail in May 2022, after the Supreme Court gave him bail, and he has since been free. But he continues to face over 80 small and large cases. His wife Tazeen Fatma and son Abdullah Azam too are accused in a number of cases. Abdullah Azam, who won the Assembly election of 2017, was disqualified from the UP House in 2020.

Under what law has he been disqualified from the Assembly?

The Representation of the People Act, 1951, which lays down the framework for the conduct of elections to Parliament and state legislatures, specifies the grounds for the disqualification of elected representatives.

Under the provisions of the Act, an elected representative can be disqualified if they are convicted of certain offences; on grounds of corrupt practices; for failing to declare election expenses; and for interests in government contracts or works.

Under Section 8 of the RP Act, 1951, disqualification can result for offences punishable under IPC Sections 153A (promoting enmity on grounds of religion, etc.), 171E (bribery), 171F (undue influence or personation at an election), 376A/ B/ C/ D (rape), 505 (statement creating or promoting enmity, hatred), etc.

Section 8(3) of the Act says “a person convicted of any offence and sentenced to imprisonment for not less than two years…shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release”.

It is under this provision that Khan has been disqualified.

Among the other major leaders who have been disqualified under the provisions of the RP Act are former Tamil Nadu Chief Minister J Jayalalithaa, who was convicted in a disproportionate assets case in 2017, and RJD supremo Lalu Prasad, who was disqualified after being convicted in the fodder scam case in 2013.

A provision in the Act that allowed elected representatives to continue in their posts provided they moved an appeal against the conviction within three months, was struck down by the Supreme Court in ‘Lily Thomas v. Union of India’ (2013).

The court said that an elected representative who is convicted of a crime and given a minimum of two years imprisonment will lose membership of the House with immediate effect.