Granting Interim Bail To Accused For Election Campaigning Might Open Pandora's Box: Supreme Court In Tahir Hussain’s Case
The Apex Court delivered a Split Verdict but agreed on the fact that Pandora’s box cannot be opened by letting convicts or undertrial prisoners seek release for election campaigns.
The Supreme Court while dealing with former AAP (Aam Aadmi Party) Councillor and Delhi Riots accused Mohd. Tahir Hussain’s Special Leave Petition (SLP), expressed its concern over granting of interim bail to the convicts for election campaigns.
The Court delivered a Split Verdict but agreed on the fact that pandora’s box cannot be opened by letting convicts or under-trial prisoners seek release for election campaigns.
Justice Pankaj Mithal observed, “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.”
He added that 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.
Justice Ahsanuddin Amanullah remarked, “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.”
However, he was of the view that Tahir Hussain can be granted interim bail for a limited period.
Senior Advocate Siddharth Aggarwal appeared for the Petitioner while Additional Solicitor General (ASG) S.V. Raju appeared for the Respondent.
Factual Background
The Petitioner i.e., Tahir Hussain was in custody in connection with an FIR registered in relation to rioting and murder of one Ankit Sharma, an official of the Intelligence Bureau, Ministry of Home Affairs, Government of India. Apart from the aforesaid case, several other cases relating to riots in Delhi which took place in the month of February, 2020 and one under the Prevention of Money Laundering Act, 2002 (PMLA) were pending consideration and the Petitioner was allegedly involved in all of them. He so far was unsuccessful in getting bail in the above case and some other cases, so he applied to the High Court for grant of interim bail simply to participate and contest Delhi Assembly Election 2025 from Mustafabad Constituency.
Tahir Hussain was earlier a councillor from the ticket of AAP, however, he subsequently left the said party and was given ticket to contest the elections by the All India Majlis-e-Ittehadul Muslimeen (AIMIM) party. He took the ticket to contest the Assembly Elections fully knowing that he was in jail. His interim Bail Application was disallowed by the High Court but he was granted conditional custody parole for subscribing oath and to complete formalities in respect of filing his nomination papers to contest the Assembly Elections. Being dissatisfied by this, he approached the Apex Court via SLP.
Justice Mithal’s Observations:
Justice Pankaj Mithal in view of the above facts, said, “It is important to note here 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. However, the petitioner is an Indian citizen and we are conscious that his rights as a citizen are to be protected. Nonetheless, the involvement of the petitioner in as many as eleven cases including the present one, one pertaining to PMLA and nine in relation to Delhi riots of 2020, dilutes and erodes his position as a law-abiding citizen.”
He further noted 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.
“… 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. Such a sequel would be in conflict with the provision Section 62(5) of the Representation of People Act, 1951 which circumscribe the right to vote by laying down that no person shall vote in any election, if he is confined in a prison or is in lawful custody of the police”, he observed.
Justice Mithal remarked that, it is high time 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. He added that the people of India should be given a choice to elect people with clean image and antecedents.
“I am of the opinion that the High Court has not committed any error of law in exercising its decision in refusing the interim bail to the petitioner and permitting him only custodial parole for the purposes of subscribing oath and filing of his nomination papers”, he said.
He, therefore, concluded that an interim bail is not permissible for the purposes of contesting elections, much less for campaigning.
Justice Amanullah’s Observations:
Justice Ahsanuddin Amanullah said, “With great reverence for the erudite opinion expressed by learned Brother Pankaj Mithal, J., I express my inability to concur therewith.”
He reiterated 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.
“The Petitioner is in custody since March, 2020. He 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, I am of the considered view that, subject to appropriate conditions being imposed, the Petitioner can be granted interim bail for a limited period. Ordered accordingly”, he further noted.
Justice Amanullah ordered that Tahir Hussain be enlarged on interim bail only upto February 4, 2025. He further directed that Hussain shall not during campaigning, make any reference whatsoever to any of the pending cases and/or the Delhi Riots of 2020.
Since the opinions of the Judges differed, the case was placed before the Chief Justice of India (CJI) Sanjiv Khanna.
Cause Title- Mohd. Tahir Hussain v. State of NCT of Delhi (Neutral Citation: 2025 INSC 100)
Appearance:
Petitioner: Senior Advocate Siddharth Aggarwal, AOR Sujoy Chatterjee, Advocates Rajiv Mohan, Tara Narula, Sonal Sarda, Shivangi Sharma, Noyonika Deori, Rishabh Bhati, A. Mitra, and Karan Dhalla.
Respondent: ASG S.V. Raju and Advocate Rajat Nair.
