Supreme Court: While deliberating over the instant petition filed by politician Tahir Hussain, who is in custody in connection with several cases including offences under PMLA Act, rioting and murder, had sought interim bail for the purposes of contesting in upcoming Legislative Assembly Elections for NCT of Delhi; the Bench of Pankaj Mithal* and Ahsanuddin Amanullah**, JJ., delivered a split verdict in this regard.
While Mithal, J., opined that interim bail is not permissible for the purposes of contesting elections, much less for campaigning; Amanullah, J., on the other hand deemed the petitioner eligible to be enlarged on conditional bail for limited period.
Furthermore, since a spilt decision was rendered in the instant case, the Division Bench therefore, directed the Registry to place the matter before the Chief Justice of India for appropriate action.
Background:
The petitioner is a politician and was councillor from the ticket of the Aam Aadmi Party (AAP). However, subsequently he left the said party and was given ticket to contest the Assembly Elections by the All India Majlis-e-Ittehadul Muslimeen (AIMIM).
The petitioner has been in custody in connection with FIR registered at Police Station Dayalpur, Northeast Delhi, in 2020, for cases of rioting and murder of an official of the Intelligence Bureau. Apart from the aforesaid cases, several other cases relating to riots in Delhi which took place in February 2020 and one under PMLA are pending consideration and the petitioner is allegedly involved in all of them.
The petitioner applied to the Delhi High Court for grant of interim bail from 14-01-2025 to 09-02-2025 simply to participate and contest Assembly Elections from Mustafabad Constituency, Delhi.
The High Court upon considering the petitioner’s application, refused to grant interim bail; however, the High Court granted conditional custody parole for subscribing oath and to complete formalities in respect of filing his nomination papers to contest the Assembly Elections.
Discontent with the afore-stated order, the petitioner preferred the instant petition contending inter alia that permitting filing of nomination is meaningless if he is not allowed to campaign and canvass.
Justice Pankaj Mithal’s Opinion
Perusing the matter, Mithal, J., had to consider that whether a purpose based interim bail can be granted to contest the election or for canvassing as the petitioner himself is one of the candidates.
Mithal, J., observed that that right to campaign or canvass is neither a fundamental right nor a constitutional or a human right. It is not even a right recognized under any statute. Mithal, J., noted that the petitioner’s involvement in as many as eleven cases including the one pertaining to PMLA and nine in relation to Delhi riots of 2020, dilutes and erodes his position as a law-abiding citizen.
Mithal, J., pointed out that there is no provision for interim bail under the law but lately it has become an acceptable mode of grant of bail in certain special contingencies and cited the very recent decision in Arvind Kejriwal vs. Directorate of Enforcement, (2024) 9 SCC 577.
Mithal, J., further said that the reasons and factors whereunder interim bail may be permitted may include cases where there is death in the family of the accused and the cremation has to take place; to attend the wedding of son/daughter or of any close relative of the accused but such a right has not been recognized on the plea of contesting or canvassing for the election.
Mithal, J., cautioned that in the event interim bail is made permissible on the ground of contesting elections, it will open a Pandora’s box inasmuch as in this country election in some form takes place throughout the year and the accused persons in jail may take undue benefit of it and even if they are not serious in contesting elections, they would move interim bail application for the purposes of participating in the election knowing fully well they are likely to lose or are not serious contenders. “This will open a flood gate of litigation which ought not to be permitted so as to widen the scope of grant of interim bail, more particularly when the regular bail application is pending consideration”.
Furthermore, if right to participate, canvassing and contesting in election is allowed to be treated as a ground for interim bail, then the necessary sequel of the same would be that the accused person ought to be allowed to vote in the election as well.
“The grant of interim bail for contesting elections would mean permitting the accused to cast his/her vote, which would be antithesis to the provisions of Section 62(5) of the Representation of People Act, 1951”.
It was further opined that canvassing in an election can be done in many ways such as through newspapers, social media, pamphlets, writing letters and it is not necessary that it should be in the physical form such as by holding meetings and by personal contact.
Permitting the petitioner to be released on interim bail for the purpose of canvassing would amount to permitting the petitioner to hold meetings and to undertake door to door canvassing. This would necessarily involve interaction of the petitioner with the people of the locality on personal basis, which may increase the possibility of his tampering with the witnesses who are or local people living in that locality alone.
“It is also well accepted that a large number of people in the past have contested elections sitting behind the bars and they have won without being released for the purposes of canvassing”. Therefore, Mithal, J., observed that there is no special circumstance in the case of the petitioner to grant him interim bail for election purposes. Most of the times, the campaigning is done by the party or its workers and if one person in the party or the leader or even the candidate is debarred from canvassing, it does not in any way affect the legal right.
In his concluding remarks, Mithal, J., emphasised that it is high time that the citizens of India deserve a clean India, which means clean politics as well and for the said purpose, it is necessary that people with tainted image, especially those who are in custody and had not been granted bail and those who are undertrial, even if out of jail, be restricted in some way or the other from participating in the election.
“The people of India should be given a choice to elect people with clean image and antecedents”.
Therefore, in the opinion of Mithal, J., the petitioner was not eligible for grant of interim bail for the purposes of election or campaigning.
Justice Ahsanuddin Amanullah’s Opinion:
Disagreeing with Justice Mithal’s view, Amanullah, J., while perusing the facts and contentions of the case, opined that merely because a statute imposes limitations on grant of bail, the same would not per se oust the jurisdiction of a Constitutional Court to grant bail, as held in Union of India v. K.A Najeeb, (2021) 3 SCC 713.
Examining the allegations against the petitioner, Amanullah, J., said that they are grave and reprehensible but as of this moment they are exactly that — allegations. It is settled law that magnitude and gravity of the offence alleged are not grounds, in and by themselves, to deny bail.
Amanullah, J., observed that The Petitioner is in custody since March, 2020 and has secured bail in a majority of the cases. The High Court permitted him to file his Nomination and consequently stand as a candidate. On the short point of period under custody already undergone as also the bail secured in the other cases, Amanullah, J., stated that, subject to appropriate conditions being imposed, the petitioner can be granted interim bail for a limited period.
However, Amanullah, J., deemed it fit to clarify that the grant of interim bail vide the instant judgment is not to be treated as a conclusive opinion on the merits of the underlying bail application or the main case before the Trial Court, lest it prejudice either side.
Expressing his agreement with Justice Mithal’s observations on grant of bail to convicts for the purposes of elections, Amanullah, J., stated that, “Learned Brother Mithal has rightly opined that a Pandora’s Box cannot be permitted to be opened by letting a horde of convicts and/or undertrial prisoners seek release for the purpose of trying their luck at the electoral hustings. Likewise, the learned ASG’s apprehension that others, whether similarly situated or not, may seek to (mis)use this Judgment, is not unjustified”.
Therefore, Amanullah, J., also deemed it fit to insert a caveat that his judgment has been passed in facts and circumstances specific to this case.
“Were any litigant, in futuro, to cite this in a later case, I am sure the Court concerned would examine such case on its merits and on its own factual prism. When any court is called upon to apply and/or follow precedent, it is for that court to examine whether or not the precedent is attracted in that particular case”.
[Mohd. Tahir Hussain v. State (NCT of Delhi), SPECIAL LEAVE PETITION(CRIMINAL) NO. 856/2025, decided on 22-1-2025]
*Opinion by Justice Pankaj Mithal
**Disagreeing Opinion by Justice Ahsanuddin Amanullah
Advocates who appeared in this case:
Mr. Siddharth Aggarwal, Senior Counsel appearing for the petitioner
Mr. S. V. Raju, Additional Solicitor General appearing for the respondent-State.
