Delhi High Court Defers to Earlier Bench in MP Engineer Rashid’s Custody Cost Plea, Citing Judicial Discipline

New Delhi – In a notable proceeding underscoring a fundamental tenet of judicial conduct, the Delhi High Court has indicated its inclination to transfer a plea by newly-elected Lok Sabha MP Abdul Rashid Sheikh, alias Engineer Rashid, back to the bench that originally mandated he bear the costs for his parliamentary attendance. The case brings to the forefront the complex interplay between the constitutional duties of an elected representative, the stringent conditions of custody under terror-related charges, and the procedural sanctity of judicial orders.

Rashid, the independent MP from Baramulla who has been incarcerated in Tihar Jail since 2019 under the Unlawful Activities (Prevention) Act (UAPA), is challenging the condition that requires him to pay for the substantial security and travel arrangements needed to attend the Monsoon Session of Parliament. A new division bench, comprising Justices Vivek Chaudhary and Mini Pushkarna, emphasized the principle of judicial discipline, stating it could not act as an appellate body over a decision made by a coordinate bench of the same court.

The court has scheduled the matter for further consideration on July 31, signaling that the path for Rashid's regular, cost-free attendance at Parliament remains procedurally intricate.

The Core Legal Conundrum: Costs of Custody Parole

The immediate legal battle stems from an order by a Delhi trial court last week, which granted Rashid custody parole from July 24 to August 4. This parole, intended to allow him to fulfill his duties as a parliamentarian, came with a significant caveat: Rashid himself must cover all associated expenses for travel and the requisite high-security escort.

This condition is not new. It was first imposed by a different division bench of the Delhi High Court, comprising Justices C D Singh and Anup Bhambhani, in March during the Budget session. At that time, jail authorities had provided a cost estimate that starkly illustrates the financial stakes: approximately ₹1.45 lakh per day. For a six-day attendance, the total amounted to over ₹8.74 lakh.

Faced with this hefty bill, Rashid had initially challenged the condition. However, to ensure his presence at the Budget session, he later submitted that he was prepared to deposit 50% of the total cost. The High Court, recording this submission, permitted his attendance based on that partial payment.

Now, seeking to attend the Monsoon Session, Rashid’s legal team is attempting to secure a full waiver of these costs. However, their plea before a new bench was met with a firm lesson in judicial procedure.

“We Can’t Rehear the Same Issue”: A Stand on Judicial Discipline

During the hearing on Tuesday, Justice Vivek Chaudhary made the court's position unequivocally clear through oral remarks. As Rashid's counsel sought an accommodation, Justice Chaudhary asserted the bench's reluctance to reconsider an issue already decided by their peers.

"We can’t rehear the same issue, we can’t sit in appeal… You have to press this modification before the earlier bench (which had provided for such a condition), it has to consider it," Justice Chaudhary stated.

He further elaborated on the principle, emphasizing that a single, standing order should govern all subsequent parliamentary sessions until it is formally modified by the appropriate bench. "Till the application (seeking modification of condition) is pending, it will be applicable for all sessions of Parliament... For every session of Parliament, there cannot be a fresh application," he added.

This stance is rooted in the doctrine of judicial discipline, a cornerstone of the common law system that prevents conflicting orders from benches of coordinate jurisdiction and preserves the integrity and consistency of judicial pronouncements. Justice Chaudhary stressed this point directly:

"There is no reason for us to sit over as an appellate court (over an issue decided by a division bench of the same court earlier), as simple as judicial discipline. The (earlier) division bench has applied its mind to the facts of the case, and taken a decision, we will follow, on (grounds of) judicial discipline, I at least very strictly and seriously follow."

The procedural path forward is now clearer, albeit complicated by logistical changes. The original bench included Justice C D Singh, who was transferred to the Allahabad High Court in April. Consequently, any reconstituted bench to hear the modification plea would likely feature the remaining member, Justice Anup Bhambhani, alongside another judge, subject to the Chief Justice's allocation.

Background: The UAPA Case Against a Parliamentarian

Engineer Rashid's situation is legally and politically unique. He secured a remarkable victory in the 2024 Lok Sabha elections from the Baramulla constituency, defeating former Jammu and Kashmir Chief Minister Omar Abdullah by a margin of over 200,000 votes, all while being held as an undertrial prisoner.

His incarceration dates back to his 2019 arrest by the National Investigation Agency (NIA) in a case related to alleged terror funding. The NIA's case, registered on May 30, 2017, targets prominent "secessionist and separatist" leaders, including Lashkar-e-Taiba (LeT) founder Hafiz Saeed. The agency alleges that these individuals, including Rashid, were involved in a criminal conspiracy (IPC Section 120B) and violated multiple sections of the UAPA by receiving funds through illicit channels to fuel "terrorist activities" and secessionist movements in Jammu and Kashmir.

According to the NIA, Rashid allegedly used public platforms to advance separatist ideologies and was associated with terrorist outfits, working to "legitimise" the United Jihad Council, a conglomerate of anti-India militant groups.

Analysis and Legal Implications for Practitioners

This case offers several key takeaways for the legal community:

• Procedural Propriety is Paramount: The High Court's explicit reliance on "judicial discipline" serves as a powerful reminder to practitioners. Seeking modification or review of an order should be directed to the original bench whenever possible. "Bench hunting" or filing fresh applications before different benches in the hope of a more favorable outcome is not only procedurally incorrect but is actively discouraged by the judiciary.

• The Rights of an Undertrial MP: The case continues to test the boundaries of an undertrial prisoner's rights when that individual is also a democratically elected representative. It raises a fundamental question: To what extent is the state obligated to facilitate the constitutional functions of an MP who is in its custody? Does the responsibility to provide security—a state function—also entail that the state must bear the cost, or can it be shifted to the individual, especially when the custody is for serious charges like terror funding?

• Financial Burden as a Potential Barrier: The prohibitive costs associated with custody parole (₹8.74 lakh for six days) could effectively act as a barrier, preventing an elected official from performing their duties. This raises questions of equity and whether an individual's financial capacity should determine their ability to participate in democratic processes, even while under trial.

• Strategic Litigation and Future Precedent: Rashid's legal team's decision to accept a 50% cost-sharing arrangement for the Budget session may have been a pragmatic choice at the time, but it has set a precedent that they must now argue against. The final outcome of this modification plea will be closely watched, as it could establish a significant precedent for similar cases involving public figures in custody.

As the matter awaits its next hearing, the legal fraternity will be observing not only the decision on the costs but also the High Court's meticulous adherence to judicial procedure in navigating this complex and high-profile case.