New Delhi: The Delhi High Court on Friday delivered a split verdict on a plea by jailed Jammu and Kashmir MP Abdul Rashid Sheikh (Engineer Rashid) against costs to be paid for attending Parliament while being in custody, with one of the judges saying he does not have any entitlement and the other holding him liable to pay only reasonable costs towards transportation and not charges for police officers accompanying him.
While Justice Vivek Chaudhary, the senior judge on the bench, rejected Rashid’s plea seeking modification of an order asking him to deposit approximately Rs 4 lakh with jail authorities to attend Parliament in custody, Justice Anup Jairam Bhambhani allowed it.
The two judges said they could not concur with each other and passed two separate judgments. The division bench referred the matter to the Chief Justice for appropriate orders.
The high court was hearing a plea by Rashid seeking modification of an order passed by a coordinate bench on March 25, asking him to deposit around Rs 4 lakh with jail authorities to attend Parliament while being in custody. Justice Bhambhani was also part of the previous division bench.
The Baramulla MP, who defeated Omar Abdullah in the 2024 Lok Sabha polls, is facing trial in a terror funding case with allegations that he funded separatists and terror groups in Jammu and Kashmir.
A Delhi court had allowed him to attend the Monsoon Session of Parliament between July 24 and August 4 with a police escort.
While dismissing Rashid’s application, Justice Chaudhary referred to certain judgments to say that he has no right, duty, entitlement or privilege to attend the parliament proceedings while in lawful custody.
“… it is clear that a custodial parole can be granted to a convict only on account of death, marriage or serious illness in the family or to him or for any other similar emergent situation. There is no such emergent circumstance placed before us by the appellant for grant of custody parole,” he said.
The judge added that the sole circumstance placed is ‘to attend Parliament sittings in regular course’, which cannot be termed as an emergent situation comparable to death, marriage or serious illness in the family or to the applicant.
“Once it is already settled in law that a parliamentarian does not have any entitlement to attend the Parliament while he is in judicial custody, to grant him custody parole for the same reason, would be indirectly doing what is barred by law,” Justice Chaudhary said.
Justice Bhambhani, on the other hand, held that being an elected member of parliament, Rashid owes a solemn obligation to his constituents to represent them in the Lok Sabha.
“I would emphasise, that in a Parliamentary democracy, an elected Member of Parliament owes a solemn obligation to his electors, and it is his bounden duty to represent his constituents in parliamentary proceedings… The importance of that role is highlighted by the fact that when a Parliament session is convened, no less a person than the President of India calls upon Members of Parliament to attend its proceedings,” he said.
The judge held that the only legitimate expense which Rashid can be asked to bear is the cost of transportation for taking him from prison to Parliament and back.
“… and the State’s demand that he must foot the charges for all police officers, who are public servants, and who the State says are required to accompany the appellant, is wholly unjustified and deserves to be quashed,” Justice Bhambhani said in his verdict.
The State asked Rashid to pay Rs 1.45 lakh as the per day cost for travel and other arrangements to avail custody-parole. Aggrieved by the demand, Rashid sought modification of the order by waiving off the costs portion.
Justice Bhambhani said he does not believe that the condition imposed in the March order was per-se unconscionable or impossible to performance, however, the manner in which the State was attempting to operationalise and implement it by demanding a large sum from the MP to avail custody-parole, renders the condition unconscionable, which needs to be corrected.
The judge said the State was unable to answer whether the salaries of police officials would be deducted proportionately if Rashid was to pay the cost sought to be recovered or they would get a “double payment” for the days they accompany him to Parliament.
“It is anybody’s guess that the money the State is demanding, particularly the charges for various police officers, would not be adjusted against the police officials’ salaries for performing their duties as public servants,” Justice Bhambhani said.
He added that if the State was fearful or felt there could be risk to Rashid, it was on them to determine what level of security is required to ensure his continued safe custody.
The judge said by denying the simple prayer for clarification of the condition imposed in the March order, the court would disable the appellant from performing that duty, to the detriment of the State, the public, and the community at large.
Justice Bhambhani clarified the March order saying as per the break-up given by the State in its report, the costs payable by Rashid would only be towards jail van expenses and escort vehicle expenses at Rs 1,036 and Rs 1,020 per day respectively.
Rashid has been lodged in Delhi’s Tihar Jail since 2019 after the NIA arrested him in the 2017 terror-funding case.
After listing him in a charge sheet in October 2019, a special NIA court framed charges against Rashid and others in March 2022 under Sections 120B (criminal conspiracy), 121 (waging war against the government), and 124A (sedition) of IPC and for offences relating to terrorist acts and terror funding under UAPA.
