The Delhi High Court on Friday delivered a split verdict on a plea filed by jailed Baramulla Member of Parliament Engineer Rashid seeking directions to the Central government to bear the expenses of his travel to the parliament from Tihar jail where he is currently lodged as an undertrial prisoner [Abdul Rashid Sheikh v NIA].
While Justice Anup Jairam Bhambhani said that government should pay for Rashid's travel, Justice Vivek Chaudhary said the government need not bear the expenses.
“We have not been able to concur on the manner in which the application is to be disposed of. There are divergent and discordant views,” Justice Bhambhani said while delivering the verdict.
The matter will now be placed before Chief Justice DK Upadhyaya.
Rashid is currently in Tihar Jail as an accused in a terror funding case under the Unlawful Activities (Prevention) Act (UAPA). He was arrested in 2019.
He won the Baramulla Lok Sabha seat in the 2024 Lok Sabha polls by defeating current Jammu and Kashmir Chief Minister Omar Abdullah by over two lakh votes.
He initially moved the trial court seeking directions to the government to allow him to attend the parliament.
The trial court allowed him to attend the parliament on certain days but said that he would have to bear the expenses of his travel and security provided by the government authorities.
He then moved the High Court against the trial court order.
He stated that he was being charged ₹17 lakh for 12 days at the rate of 1.44 lakh per day for security and travel arrangements from Tihar jail to the parliament and back.
"You are saddling me with ₹17 lakh cost to represent the public at large? I am losing every day. I have gone there before. You have sent me earlier on two occasions. I was allowed by this Court,” Senior Advocate N Hariharan, appearing for Rashid, said.
In his opinion, Justice Bhambhani said that Rashid should be pay the jail van and escort vehicle expenses and not the charges for all police officers, who are public servants.
It is wholly unjustified, Justice Bhambhani stressed.
He referred to the Supreme Court’s observations in a case by former Prime Minister PV Narasimha Rao, where the top court had said that there cannot be a duty that is more public than that of a Parliamentarian.
“I accordingly hold that the only legitimate expense that the appellant 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 the appellant 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,” he held.
Meanwhile, Justice Chaudhary ruled that Rashid “has no right, duty, entitlement or privilege, as it may be called, to attend the parliament proceedings while in lawful custody”.
He noted that 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. 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,” he said.
Senior Advocate N Hariharan, along with advocates Vikhyat Oberoi, Nishita Gupta, Shivam Prakash, Ravi Sharma, Punya Rekha Angara, Aman Akhtar, Vinayak Gautam, Vasudhara and Hashain Khawaja appeared for Engineer Rashid.
NIA was represented through Senior Advocate Sidharth Luthra, Special Public Prosecutor (SPP) Akshai Malik and advocate Khawar Saleem.
[Read Judgement]