New Delhi, Feb 5 (PTI) Who hears the bail plea of Jammu and Kashmir MP Rashid Engineer in a terror funding case is a moot point baffling courts and has reached the Supreme Court. With legal experts weighing in, the tricky scenario, prompted by the issue over jurisdiction, calls for a closer look at the gap in law.

ISSUE AND CASE AGAINST RASHID ENGINEER The issue over the bail hearing arose after an NIA court said it couldn’t pass orders on the bail plea of the jailed MP, facing terror charges. On the other hand, the statute doesn’t allow cases probed by the NIA to be heard by special courts meant for lawmakers.

Though the question is pending before the Delhi High Court, its registrar general recently wrote to the Supreme Court to intervene.

The National Investigation Agency (NIA) arrested Rashid under the Unlawful Activities (Prevention) Act in a 2017 terror funding case. He contested the 2024 Lok Sabha polls from the Baramulla constituency and won.

Rashid has been lodged in Tihar Jail since 2019.

INCEPTION OF MP/MLA COURTS The Supreme Court in 2017 paved way for the creation of special MP/MLA courts. It asked the Centre to set up 12 special courts across states for expeditious trial of criminal cases involving MP/MLAs.

Accordingly, special courts in NCT of Delhi and other states were constituted.

From time to time, the top court and high courts passed orders offering clarity on the functioning of the special courts meant for cases against lawmakers.

Senior advocate Rebecca John, however, says the Supreme Court needs to re-examine the whole issue of MP/MLA courts.

“Why should there be separate courts for representatives of Parliament or state legislative assemblies? Particularly when ordinary citizens don’t get exclusive courts to try their cases,” she argues.

Official stats show 124 cases pending in six MP/MLA courts in Delhi as on January 1.

Former Delhi High Court judge and senior advocate Mukta Gupta says separate courts were assigned to hear cases relating to MPs and MLAs to expedite trials relating to the lawmakers.

“These special courts unless designated as courts under the NIA law, cannot hear NIA matters because that is a statutory requirement.” “Courts assigned for MP/MLA cases primarily hear cases of CBI and other economic offences. The special CBI courts were designated to hear cases against MP/MLAs,” adds Gupta.

JURISDICTION OF SPECIAL NIA COURTS The NIA court was constituted under the NIA Act, 2008. The law allows the agency to investigate and prosecute offences over the sovereignty, security and integrity of India, security of state, friendly relations with foreign states, among others.

Section 11 of the Act says, “The Central Government shall, by notification in the official gazette, for the trial of scheduled offences, constitute one or more special courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.” While John says the NIA court is a creation of a statute and can't be subordinate to any other court, Gupta feels under the statute, the special court conducting NIA trial is competent to deal with the case of the petitioner though an MP or MLA.

EXPERTS SPEAK Renowned senior counsel and criminal lawyer Amit Desai outlines two issues — one of participating in Parliament and the other of a right. “There's a debate on the subject as to whether such a person has a right.” He opines the principle of disqualification should come in which means till someone is disqualified, they are entitled to participate in their vocation. “And politics is also a vocation.” Till the point of conviction, there is a presumption of innocence, says Desai. And by conviction he means ultimate conviction.

In Rashid’s case, the trial is underway with 21 prosecution witnesses of the total 248 witnesses being examined.

“If there is a conviction by the first court, and the conviction is stayed pending the appeal, then you are entitled to participate and carry on your vocation,” says Desai.

He points out, “Also mere filing of a chargesheet doesn’t automatically result in being deprived of your vocation. Custody pending investigation or trial cannot deprive such a person of his fundamental rights to business and profession. Hence many parliamentarians with chargesheets are allowed to be present in Parliament." Desai says an inquiry by a non-partisan, regulatory body, which is a disciplinary committee, could decide whether they want to disqualify that person or not.

When there is a disciplinary proceeding against such a person by the regulator which regulates the requisite profession, they can separately disqualify the person, he says.

“That has nothing to do with the fact that a chargesheet has been filed. If there is no conviction, you can set up a separate regulatory body where there can be an inquiry to decide the question. Till then you can participate.” The question is whether an independent body, like a Lokayukta, should hold an inquiry and say yes or no, on attending Parliament, adds Desai.

“Today you have got enough statistics of how many people who have got chargesheets against them for serious crimes and are members of Parliament and they're attending Parliament. The only difference is the present person has not been granted bail. Not being granted bail is not equal to conviction,” he says.

If Rashid could file his nomination papers from jail, then the necessary sequitur to that is that he's allowed to attend Parliament, says Desai.

According to Desai, in a “tricky situation” such as this, the high court can certainly assume jurisdiction and decide bail or attendance “being a question of liberty or right to vocation".

Senior advocate Vikas Pahwa says, “When an accused is charged under specific statutes — such as the UAPA, PMLA, NDPS, POCSO and others — the jurisdiction of the special courts constituted under those statutes will prevail.” This, says Pahwa, is because the specialised courts established by Parliament are offence centric, designed to address the unique complexities of particular crimes rather than focusing on the status of the accused.

“Their dedicated procedural and judicial frameworks, formulated under Parliament’s legislative power, take precedence in ensuring that cases are adjudicated in accordance with the specific challenges posed by those offences.” The lawmakers who are accused in special statutes should be tried by special courts constituted under the Act, and not by the special courts created for MPs or MLAs, Pahwa adds.

While the situation throws a legal rigmarole, it is perhaps up to the constitutional courts to settle the issue for good. PTI AMK KVK KVK