Delhi HC allows arrested J&K MP to attend budget session

The Delhi high court has allowed arrested Jammu & Kashmir MP Abdul Rashid Sheikh, alias Rashid Engineer, to attend the ongoing budget session of Parliament from March 26 to April 4 “in custody”, saying that the lawmaker has a duty to represent the people of his constituency.

A bench of justices CD Singh and Anup Jairam Bhambani, however, barred Rashid from using a mobile phone, interacting with others, and addressing the media.

In its 17-page order, delivered on Tuesday but made public on Wednesday, the court acknowledged the gravity of the offences with which the Baramullah MP has been charged. But it said that the undertrials are eligible to contest parliamentary elections despite being charged with heinous offences. The court also took note of Rashid taking oath as an MP despite being facing serious charges.

“There is absolutely no doubt in the mind of this court that the appellant is accused of very serious offences inter alia under UAPA; and the essential allegation against the appellant, viz. that he was collaborating with certain outfits for funding secessionist and separatist activities in Jammu & Kashmir and waging war against the government of India, is not to be taken lightly,” the court said in its order.

“The settled position of law is that undertrials are eligible to contest parliamentary elections notwithstanding that they may be charged with heinous offences. Having been duly elected, the appellant was administered oath of his office, despite the fact that he is an undertrial facing serious charges. As a member of Parliament, the appellant owes to the people of his constituency the duty and responsibility to represent them in Parliament,” it added.

The court also directed the director general (prisons) to send Rashid “in custody” under police escort from prison to Parliament during the hours that the Lok Sabha is in session, and to hand over his custody to the Parliament security/marshals.

Rashid had approached the Delhi high court against the city court’s March 10 order denying him custody parole to attend the session.

In his petition before the high court, argued by senior advocate N Hariharan along with advocate Vikhyat Oberoi, the parliamentarian urged the court to permit him to attend the sittings “in custody” to enable him to discharge his duties and obligations as an elected MP. Hariharan further argued that the high court on February 10 permitted him to attend the session for two days and there was no allegation of him violating the conditions imposed on him.

The National Investigation Agency (NIA), represented by additional solicitor general Rajkumar Bhaskar Thakare along with special public prosecutor Akshai Malik and advocate Khawar Saleem, submitted that permitting Rashid to attend the session would pose a threat to national security since Rashid would have the platform to voice his opinions. However, the court said that the Lok Sabha Speaker has the remit to control parliamentary proceedings. “Suffice it to say that the control of Parliamentary proceedings is within the remit of the Hon’ble Speaker of the Lok Sabha; and this court has no doubt that Parliamentary proceedings would be conducted with requisite discipline,” the court said.

In its order, the court shot down NIA’s submission that an order taking Rashid to Parliament “in custody” would be rendered purposeless since he would cease to be in court’s custody pursuant to entering the precincts of the Parliament.

“As for NIA‟s apprehension that once the appellant is within the precincts of Parliament, and in particular inside the House, the appellant would cease to be “in custody” of the court and would therefore be beyond the court’s control, we are of the view that such apprehension is without any basis, since the appellant would only temporarily be handed over to the Parliament security detail and that too for the limited purpose of performing his duties as a Member of Parliament of his constituency,” the order maintained.

Engineer was arrested under the Unlawful Activities (Prevention) Act case in 2019. NIA in its charge sheet claimed that he and other accused were involved in using illicit funds to fuel unrest and separatism in Jammu & Kashmir. He was elected to the Lok Sabha from Baramullah in a high-profile election, defeating Omar Abdullah from behind bars as an independent candidate.