Breaking: Apex Court Delivers Split Verdict In Tahir Hussain's Interim Bail Plea To Campaign For Delhi Assembly Polls

The Supreme Court today delivered a split verdict in the Special Leave Petition (SLP) filed by Tahir Hussain, an AIMIM candidate and accused in multiple cases related to the 2020 Delhi riots, seeking interim bail to campaign for the upcoming Delhi Assembly elections from the Mustafabad constituency.

Justice Pankaj Mithal denied interim bail to Hussain and ruled that he had not made a sufficient case for interim bail, emphasizing the serious allegations against him, including charges of rioting and murder. Justice Mittal noted that Hussain’s petition was centered around canvassing for elections, which is neither a fundamental nor a statutory right, and declined to exercise discretion in his favour.

Justice Mithal observed, "This is a matter of life and liberty, but we cannot ignore the gravity of the allegations, the pendency of witnesses, and the possibility of tampering with evidence." He underscored that Hussain’s house was allegedly used as the "epicenter" during the riots, and there were substantial allegations of his role in orchestrating the violence, including the murder of Intelligence Bureau officer Ankit Sharma. Justice Mithal also expressed concern about Hussain’s presence in the locality during canvassing, which could influence witnesses and hinder the judicial process.

Justice Mithal also addressed the issue of prolonged trial and incarceration, with Hussain having been in custody for over four years. However, he pointed out that regular bail applications in related cases were pending before the High Court and set for February, making the request for interim bail inappropriate at this stage. He rejected the argument that granting interim bail for elections would create a precedent, leading to a "Pandora’s box" of similar pleas by undertrial candidates. Justice Mithal remarked, "Elections are a year-round phenomenon, and every undertrial may then claim a right to interim bail for campaigning, which cannot be permitted."

Further, he observed that while Hussain’s right to contest the elections had been protected through custody parole for filing nomination papers, the right to canvass was not integral to his legal or constitutional rights. Justice Mithal noted that even if interim bail were granted, Hussain would remain in jail due to pending cases under the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), where bail applications are still pending. “The entire exercise before this Court is academic,” he said.

Dismissing the SLP, Justice Mithal left Hussain with the liberty to pursue regular bail. “Participation in elections does not suffice to establish a case for interim bail. The petitioner may seek regular bail in appropriate forums,” Justice Mithal concluded.

However, on the contrary, Justice Ahsanuddin Amanullah said, "With great reverence to the view expressed by my learned brother, I am unable to concur."

Justice Amanullah, dissenting from the view of his colleague on the bench, observed that Hussain’s prolonged incarceration of nearly five years warranted judicial scrutiny, especially in light of delays in trial proceedings. Justice Amanullah emphasized that the petitioner’s right to participate in elections as a citizen of India would be seriously prejudiced if he were not permitted to canvass.

While refraining from discussing the detailed merits of the evidence against Hussain, Justice Amanullah focused on broader legal principles, including the right to a fair and speedy trial. He noted, “No doubt the allegations are grave. However, as of this moment, they remain exactly that—allegations. Gravity alone cannot be a reason to deny bail.” Justice Amanullah observed that Hussain had been granted custody parole by the Delhi High Court to file his nomination and that the trial had been delayed significantly, with only four of five eyewitnesses examined since the chargesheet was filed in June 2020.

Justice Amanullah granted Hussain interim bail for a limited period, subject to strict conditions. Justice Amanullah underlined that the petitioner’s right to engage with his electorate must be balanced with public interest, stating, “It is reasonable and fair that he should get a chance for whatever few days are remaining to convince the electorate.”

The bail conditions include restrictions to ensure monitoring of Hussain’s activities during the campaign period.

Since, there has been a split verdict, now the matter will be placed before the bench led by CJI Sanjiv Khanna, who will decide whether another bench will deal with the matter or, whether a 3-Judge Bench will hear the matter.

Arguments Before The Bench

During the hearing today, Senior Advocate Siddharth Aggarwal, appearing for Hussain, argued that he has been kept away from his electorate for four years, and his interim bail is a matter of electoral fairness. Citing precedents, including interim bail granted to Delhi Chief Minister Arvind Kejriwal in a PMLA case, Aggarwal emphasized the delay in trial proceedings and claimed his client had cooperated with investigations.

“In the last four years and ten months, the State has not fulfilled its duty to expedite the trial,” Aggarwal submitted. He further submitted that the charges against Hussain were overlapping across multiple cases and claimed that no additional substantive evidence has emerged.

Opposing the interim bail plea, Additional Solicitor General (ASG) SV Raju for Delhi Police, argued that Hussain’s release could influence witnesses and disrupt the trial. “This is a gimmick for getting bail. People canvass for elections from jail too. He is accused of orchestrating riots, and his house was the hub of illegal activities,” Raju asserted. He dismissed comparisons to Kejriwal’s case, pointing out the differing nature of allegations and Hussain’s alleged involvement in a murder case.

Previous Court Proceedings

Pertinently, on January 21, the Court had expressed reservations about granting interim bail. Justice Mithal had however, pointed out that the chargesheet places Hussain at the scene and includes witness statements accusing him of instigating violence. “Your involvement is very much there,” Justice Mithal had observed, questioning the necessity of interim bail over regular bail.