Delhi High Court Hints At Allowing Jailed MP Engineer Rashid To Attend Parliament, Tells NIA To Not Underestimate Powers Of Court, Speaker

The Delhi High Court on Tuesday hinted on granting permission to jailed Jammu and Kashmir MP Engineer Rashid to attend the second part of the parliamentary session, which will end on April 04, while being in custody.

A division bench comprising of Justice Chandra Dhari Singh and Justice Anup Jairam Bhambhani reserved verdict on Rashid's plea after his counsel, Senior Advocate N Hariharan, submitted that he was not pressing for release on interim bail or custody parole and was only seeking permission to attend the Parliament while in custody.

As the NIA counsel said that the allegations against Rashid are serious and heinous in nature and he can say anything inside the Parliament which may affect the security of the country, Justice Bhambhani remarked that the NIA should not come from a point of fear that Rashid will do anything inside the Parliament. It added that the agency must not undermine the power of the court or the Speaker.

“There is a concept of sending someone outside prison while still being in custody. When you (NIA) say that Section 43D (5) of UAPA, we are not granting him bail. He is in custody. We are sending our officers with him throughout except where they are not allowed. It is within the confines of the highest temple of democracy- inside Parliament. Don't undermine the position and power of the speaker and the secretary general to enforce discipline within the Parliament. You say he will not be in control. How?,” Justice Bhambhani told NIA counsel.

The judge added: “There is a single judge's order (earlier granting custody parole to Rashid to attend Parliament). If you have any further apprehension, then please tell us. We will include it as additional conditions but be confident of court's powers, speaker's powers. Be confident. Don't come from a point of fear that he'll do this, he'll do that. Nothing will happen. We are there…. You're telling us to ignore the fact that he is an elected representative of people.”

During the hearing, Justice Singh told Hariharan that the allegations against Rashid were extremely serious in nature. To this, Hariharan responded that the charges were available against Rashid previously also when he was allowed to contest elections last year and was even released for campaigning for the polls.

“I took oath in the Parliament. My allegiance to this country is beyond any doubt when I take oath. Post that, there is no allegation against me,” he said, adding that Rashid will lose the right to be released on custody if he does anything against the sovereignty of the country.

On Court's query, the counsel appearing for NIA told Court that Rashid did not breach any conditions imposed by the Court while granting him interim bail for contesting elections or of custody parole to attend Parliament last month.

NIA counsel however said that Rashid cannot be treated at par with any other Parliamentarian and that the order will virtually mean that he is out on bail whereas his bail has been rejected twice by the trial court on merits.

To this, Justice Bhambhani remarked that if Rashid remains in custody for the next 10 years and continues to be a Parliamentarian, what happens to his oath's right and his responsibility as a legislator.

As NIA counsel interjected, the judge said: “Then as a matter of law, undertrials should be prevented from contesting elections. That's not the law. And it's correct that it's not the law. A simple FIR somewhere and the person will be disqualified from contesting elections. Law is justified and sound.”

“If he is released in custody for attending Parliament, then what is the problem? If a person is sent in custody to attend Parliament and he returns back and he is sent in custody next day also, then what is the problem? How they will challenge the security of country or security of society?” Justice Bhambhani said.

The NIA counsel again reiterated that the allegations against Rashid were grave and serious in nature and he cannot be allowed to enter the Parliament. To this, Justice Bhambhani said:

“Let's not see ghosts…that he will do this inside Parliament, he'll do that. He will be in our custody. We have long enough arms and our arms are strong enough to keep him on line. I speak for myself. I am not worried that he won't obey the law…. Is he not controlled by Speaker? You're saying that not only are courts powerless but the speaker is also powerless.”

“We don't for a moment undermine the seriousness of allegations against him. Be sure of that. Where is the question? National security is above everything. You say don't bring him out, he is going to do this he will do that or don't bring him to Patiala House Court or Rouse Avenue District Court. That's not an answer,” the judge said further.

On the apprehension that Court's custody will end the moment Rashid enters the Parliament, Hariharan said that his custody can be extended through the Speaker and the Secretary General.

At this juncture, the Court asked NIA counsel if special permission can be taken from the Speaker or Secretary General of the Parliament allowing one prison officer or policeman with Rashid inside Parliament in plain clothing.

To this, the NIA counsel said that if such a permission has to be sought, then the agency will have to write to the Lok Sabha Secretariat. Thereafter, the Court said that it will pass an order in the matter.

As the bench hinted on granting relief to Rashid, Justice Bhambhani told Hariharan:

“Let there be no cause of concern by the State that you didn't abide by the conditions in custody permission. There will be more parliamentary sessions…”

Justice Singh added: “[You have to] ensure that he won't do anything or violate any conditions.”

Rashid has challenged an order passed by special NIA court denying him custody parole on March 10. In the trial court, he sought the relief on the ground that being he needed to attend the session to fulfil his public duty being a parliamentarian.

In February, a single judge of the High Court had granted Rashid custody parole for two days in order to enable him to attend the parliament.

Later, the Court had asked the Special NIA Court to decide Rashid's bail plea expeditiously. Subsequently, the trial court has now listed order on his regular bail plea on March 19 while denying him custody parole.

Rashid was elected from the Baramulla constituency in the 2024 Lok Sabha elections and has been lodged in Tihar Jail since 2019 after the NIA arrested him under the Unlawful Activities (Prevention) Act in the 2017 terror-funding case.

Rashid has been in jail since 2019 after he was charged by NIA under the Unlawful Activities (Prevention) Act in alleged terror funding case.

Title: Abdul Rashid Sheikh v. NIA