Jailed MP's Parliamentary Duty vs. Custody Costs: Delhi HC's Third Judge to Resolve Split Verdict

New Delhi – The Delhi High Court is set to navigate a complex constitutional and procedural intersection involving the rights of an incarcerated Member of Parliament. Following a split verdict from a division bench, a third judge, Justice Ravinder Dudeja, will conduct a preliminary hearing on January 14 to decide the fate of a plea by jailed Baramulla MP Abdul Rashid Sheikh, popularly known as Engineer Rashid. The case hinges on whether Rashid, an undertrial in a terror-funding case, must bear the substantial costs associated with his police escort to attend Parliamentary sessions.

The matter was referred to Justice Dudeja after a division bench comprising Justices Vivek Chaudhary and Anup Jairam Bhambhani delivered two starkly contrasting judgments on November 7, unable to reach a consensus on Rashid's appeal. This legal impasse has brought to the forefront fundamental questions about the balance between an elected representative's duties to their constituents and the legal constraints of being in state custody.

The Procedural Crossroads: A Third Judge's Mandate

The January 14 hearing before Justice Dudeja is not slated to decide the merits of the case itself but to address a crucial preliminary question. Counsel for both Rashid and the National Investigation Agency (NIA) have submitted that the judge must first determine the procedural path forward: either deliver a deciding opinion that resolves the split verdict or refer the entire appeal for a fresh hearing before a larger bench of judges.

This procedure is guided by Section 433 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which dictates the course of action when a bench of two or more judges is equally divided in opinion on an appeal. The section mandates that the case be referred to another judge of the same court, who may either provide a deciding vote or, if deemed necessary, order the appeal to be re-heard by a larger bench.

A Tale of Two Judgments: The Split Verdict

The core of the legal conflict lies in the diametrically opposed views of Justice Chaudhary and Justice Bhambhani on Rashid's plea. Rashid had challenged a March 25 order that required him to deposit approximately Rs 4 lakh with jail authorities to cover the costs of attending the Monsoon session of Parliament between July 24 and August 4. The State had calculated the per-day cost at Rs 1.45 lakh for travel and security arrangements.

Justice Chaudhary’s Stance: No Inherent Right While in Custody

Justice Vivek Chaudhary, the senior judge on the bench, took a stringent view, rejecting Rashid’s plea entirely. He opined that an individual in lawful custody does not retain any inherent right, entitlement, or privilege to attend Parliament. He reasoned that attending parliamentary sittings "in regular course" could not be equated with an "emergent situation" like a death or serious illness in the family, which are typical grounds for granting parole. His judgment effectively prioritised Rashid's status as an undertrial prisoner over his role as an elected MP, suggesting that constitutional duties are held in abeyance during lawful incarceration.

Justice Bhambhani’s Counterpoint: The Solemn Obligation to Constituents

In a powerful dissent, Justice Anup Jairam Bhambhani allowed Rashid’s plea, emphasizing the democratic and constitutional obligations of an elected representative. He argued that the cost should be nominal, covering only direct transportation expenses and not the salaries or charges for the accompanying police escort.

“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,” Justice Bhambhani held.

He framed the issue not as a privilege of the MP but as a right of the constituency to be represented. He asserted that the police officers are public servants performing their duty, and demanding that the prisoner foot their bill is "wholly unjustified and deserves to be quashed." According to his interpretation, the legitimate cost payable by Rashid would only be for the jail van and escort vehicle, amounting to a nominal sum of Rs 1,036 and Rs 1,020 per day, respectively.

Background of the Case: From Election Victory to Legal Battle

Engineer Rashid, who secured a surprising victory against former Chief Minister Omar Abdullah in the 2024 Lok Sabha elections from the Baramulla constituency, has been lodged in Delhi’s Tihar Jail since his arrest by the NIA in 2019. He is an accused in a 2017 terror-funding case.

In March 2022, a special NIA court framed charges against Rashid and others under stringent provisions of the Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code, including Section 120B (criminal conspiracy), Section 121 (waging war against the government), and Section 124A (sedition). Rashid has consistently denied the charges, claiming they are politically motivated.

Broader Legal and Constitutional Implications

The final outcome of this case, whether decided by Justice Dudeja or a larger bench, will establish a significant precedent with far-reaching implications for Indian democracy and criminal jurisprudence.

• Defining the Rights of Incarcerated Legislators: The verdict will provide crucial clarity on the legal status of an MP or MLA who is an undertrial. It will address whether their constitutional duties can be performed from custody and under what conditions. This is particularly relevant in an era where central investigative agencies are often accused of targeting political opponents.

• The Financial Burden of Custody Parole: The judgment will set a benchmark for the costs that can be imposed on prisoners seeking parole for reasons other than personal emergencies. If Justice Bhambhani’s view prevails, it could prevent the state from levying prohibitive costs that effectively deny undertrials access to necessary leaves or permissions.

• The Right to Representation: At its heart, the case tests the principle of representation. If an elected representative is barred from participating in legislative proceedings due to prohibitive costs imposed by the executive, it can be argued that their entire constituency is being disenfranchised.

As the Delhi High Court prepares for the January 14 hearing, the legal community will be watching closely. The decision will not only determine Engineer Rashid's ability to attend Parliament but will also shape the delicate balance between the rule of law, the rights of the accused, and the foundational principles of parliamentary democracy in India.