Introduction
Date of the Judgment: January 22, 2025
Judges: Pankaj Mithal, J., Ahsanuddin Amanullah, J.
Can an accused person in jail be granted interim bail to campaign for an election? The Supreme Court of India recently addressed this question in the case of Mohd. Tahir Hussain vs. State of NCT of Delhi. This judgment explores the balance between an individual’s right to participate in the democratic process and the need to maintain law and order.
The Supreme Court bench, composed of Justice Pankaj Mithal and Justice Ahsanuddin Amanullah, delivered a split verdict regarding the interim bail application of Mohd. Tahir Hussain. The case revolves around whether an individual, currently in custody, should be granted temporary release to campaign in an upcoming election. Justice Mithal dismissed the petition, while Justice Amanullah allowed it with certain conditions, leading to a referral to the Chief Justice of India.
Case Background
Mohd. Tahir Hussain, the petitioner, is in custody concerning FIR No. 65 of 2020, which is related to rioting and the murder of Ankit Sharma, an Intelligence Bureau official. The incident occurred on February 26, 2020, and the case is registered at the Dayalpur Police Station in Delhi. Besides this case, Hussain is allegedly involved in several other cases related to the Delhi riots of February 2020, including one under the Prevention of Money Laundering Act (PMLA).
Hussain sought interim bail from January 14, 2025, to February 9, 2025, to participate in and contest the Delhi Assembly Election, 2025, from the Mustafabad Constituency. He had previously served as a councilor for the Aam Aadmi Party but later switched to the All India Majlis-e-Ittehadul Muslimeen (AIMIM).
Timeline
| Date | Event |
|---|---|
| February 26, 2020 | FIR No. 65/2020 registered at PS Dayalpur regarding rioting and murder of Ankit Sharma. |
| February 2020 | Delhi riots occur, leading to multiple cases against the petitioner. |
| June 2, 2020 | Chargesheet submitted in FIR No. 65/2020. |
| January 14, 2025 | High Court disallows interim bail but grants conditional custody parole for filing nomination papers. |
| January 14, 2025 – February 9, 2025 | Period for which interim bail was sought to participate and contest Delhi Assembly Election. |
| January 22, 2025 | Supreme Court delivers split verdict on the special leave petition. |
Legal Framework
The legal framework relevant to this case includes:
- Section 62(5) of the Representation of the People Act, 1951:
“No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.” This provision restricts the right to vote for individuals in prison or police custody.
Arguments
Petitioner’s Arguments:
- ✓ The petitioner has been in custody for almost five years, which is a significant period.
- ✓ The democratic process requires candidates to connect with the electorate.
- ✓ The petitioner had an unblemished record as a Ward Councillor.
- ✓ Out of 11 FIRs, the petitioner has been granted bail in 8 cases.
- ✓ The prosecution has failed to facilitate a fair and speedy trial.
- ✓ The right of an accused to bail is almost crystallized if the prosecution fails to discharge its onus of facilitating a fair and speedy trial.
- ✓ Even under specific laws where there are prohibitions for grant of bail, the courts have held that the same would not apply in case of granting provisional bail.
- ✓ The petitioner made repeated calls to the Police Control Room during the riots.
- ✓ The petitioner’s house was the only house which was not vandalized.
Respondent’s Arguments:
- ✓ The petition is misconceived because custody parole was granted only to fill up and submit Nomination Papers.
- ✓ The right to contest elections is not a Fundamental Right.
- ✓ A right to campaign would not be a necessary corollary to the indulgence granted.
- ✓ Various other modes of campaigning are available to him apart from physically.
- ✓ The right to vote is not available to a person who is behind bars.
- ✓ Granting interim bail would lead to complexities as the petitioner would get in touch with witnesses.
- ✓ Interference in the present case would lead to a precedent where similarly-situated convicts/undertrial prisoners may stand in any election just to get out of jail.
- ✓ If the petitioner is so confident of his work and position in society, he would not be required to physically canvass.
- ✓ The present petition had been rendered infructuous, and the Court could not prejudge the case.
- ✓ The Court ought to refrain from granting interim bail to the Petitioner as the same would be purely academic.
Submissions Table
| Main Submission | Petitioner’s Sub-Submissions | Respondent’s Sub-Submissions |
|---|---|---|
| Right to Participate in Elections | ✓ Democratic process requires candidates to connect with electorate. ✓ Filing nomination alone is not sufficient without campaigning. |
✓ Right to contest is not a fundamental right. ✓ Custody parole was granted only to file nomination papers. |
| Length of Incarceration | ✓ The petitioner has been in custody for almost five years. ✓ The prosecution has failed to facilitate a fair and speedy trial. |
✓ Granting interim bail would set a wrong precedent for other undertrials. |
| Criminal Record and Allegations | ✓ The petitioner had an unblemished record as a Ward Councillor. ✓ Granted bail in 8 out of 11 FIRs. |
✓ The petitioner is involved in serious offenses including rioting and murder. ✓ Granting bail would lead to witness tampering. |
| Availability of Other Campaigning Modes | ✓ Physical campaigning is essential to connect with voters. | ✓ Various other modes of campaigning are available (pamphlets, etc.). |
| Impact on Voting Rights | ✓ N/A | ✓ Granting bail would allow the petitioner to vote, infringing Section 62(5) of the Representation of the People Act, 1951. |
Issues Framed by the Supreme Court
- 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.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Whether interim bail can be granted for contesting/canvassing elections | Justice Mithal: No Justice Amanullah: Yes, with conditions |
Justice Mithal: No provision for interim bail for elections; may open Pandora’s box. Justice Amanullah: Can be granted for a limited period, subject to conditions, considering the period of custody and bail in other cases. |
Authorities
The court considered the following authorities:
| Authority | Court | How Considered | Legal Point |
|---|---|---|---|
| Arvind Kejriwal vs. Directorate of Enforcement, (2024) 9 SCC 577 | Supreme Court of India | Distinguished by Justice Mithal, referred to by Justice Amanullah | Interim bail considerations |
| Athar Pervez case, 2016 SCC OnLine Del 6662 | Delhi High Court | Quoted with approval in Arvind Kejriwal vs. Directorate of Enforcement | Definition and use of “interim” bail |
| Anukul Chandra Pradhan, Advocate Supreme Court Vs. Union of India and Ors.: 1997 (6) SCC 1 | Supreme Court of India | Referred | Restrictions on voting rights of prisoners |
| State of Haryana v Dharamraj, 2023 SCC OnLine SC 1085 | Supreme Court of India | Referred | Contours on which to examine the grant of bail |
| Niranjan Singh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559 | Supreme Court of India | Referred | Refraining from discussing in detail the evidence |
| Vilas Pandurang Pawar v State of Maharashtra, (2012) 8 SCC 795 | Supreme Court of India | Referred | Refraining from discussing in detail the evidence |
| Manik Madhukar Sarve v Vitthal Damuji Meher, (2024) 10 SCC 753 | Supreme Court of India | Referred | Refraining from discussing in detail the evidence |
| Union of India v K A Najeeb, (2021) 3 SCC 713 | Supreme Court of India | Referred | Constitutional Court to grant bail, as held in |
| Gurwinder Singh v State of Punjab, (2024) 5 SCC 403 | Supreme Court of India | Distinguished | Limitations on grant of bail |
| Javed Gulam Nabi Shaikh v State of Maharashtra, (2024) 9 SCC 813 | Supreme Court of India | Referred | Rights under Articles 14 and 21 of the Constitution of India |
| Sheikh Javed Iqbal v State of Uttar Pradesh, (2024) 8 SCC 293 | Supreme Court of India | Referred | Rights under Articles 14 and 21 of the Constitution of India |
| Jalaluddin Khan v Union of India, (2024) 10 SCC 574 | Supreme Court of India | Referred | Magnitude and gravity of the offence alleged are not grounds, in and by themselves, to deny bail |
| Sanjay Dubey v State of Madhya Pradesh, 2023 SCC OnLine SC 610 | Supreme Court of India | Referred | Judgments are not to be read as Euclid’s theorems |
| Frank Vitus v Narcotics Control Bureau, [2024] 7 SCR 97 | Supreme Court of India | Referred | Imposing any bail condition which enables the Police/ Investigation Agency to track every movement of the accused |
| Sections 480(3)(b) and 482(2)(ii) of the Bharatiya Nagarik Suraksha Sanhita, 2023 | Indian Law | Referred | Conditions for interim bail |
Judgment
The Supreme Court delivered a split verdict. Justice Pankaj Mithal dismissed the Special Leave Petition, while Justice Ahsanuddin Amanullah allowed it with certain conditions, leading to a referral to the Chief Justice of India.
| Submission | Court’s Treatment (Justice Mithal) | Court’s Treatment (Justice Amanullah) |
|---|---|---|
| Interim bail for campaigning | Not permissible | Permissible with conditions |
| Right to contest elections | Statutory right protected by allowing filing of nomination | Fundamental rights under Articles 14 and 21 cannot be lost sight of |
| Long incarceration | Relevant for regular bail, not interim bail | A significant factor for granting interim bail |
| Other pending cases | Impacts the possibility of actual release | Should not influence the decision on interim bail for this specific case |
How each authority was viewed by the Court:
- Arvind Kejriwal vs. Directorate of Enforcement, (2024) 9 SCC 577: Justice Mithal distinguished this case, noting that Kejriwal held a high political office, while Justice Amanullah referred to it to support the possibility of granting interim bail.
- Section 62(5) of the Representation of the People Act, 1951: Justice Mithal noted that granting interim bail for contesting elections would conflict with this provision, while Justice Amanullah did not directly address this conflict in the judgment.
What Weighed in the Mind of the Court?
The split verdict indicates differing sentiments within the court. Justice Mithal prioritized maintaining legal restrictions and preventing misuse of interim bail, while Justice Amanullah emphasized protecting individual rights and ensuring fair participation in elections, considering the specific circumstances of the case.
| Reason | Sentiment Ranking |
|---|---|
| Maintaining legal restrictions on interim bail | 60% |
| Protecting individual rights and ensuring fair participation in elections | 40% |
| Category | Percentage |
|---|---|
| Fact (Factual aspects of the case) | 45% |
| Law (Legal considerations) | 55% |
Logical Reasoning
Issue: Whether interim bail can be granted for contesting/canvassing elections
Petitioner seeks interim bail for campaigning
Justice Mithal
No provision for interim bail for elections
May open Pandora’s box
Denies interim bail
Justice Amanullah
Period of custody and bail in other cases
Subject to conditions
Grants interim bail
Referred to Chief Justice of India due to differing opinions
Key Takeaways
- ✓ The Supreme Court’s split verdict highlights the complex balance between individual rights and legal restrictions.
- ✓ Interim bail for election campaigning is not a settled legal principle and depends on the specific facts of each case.
- ✓ The decision underscores the importance of considering the length of incarceration and other pending cases when deciding on interim bail.
Development of Law
The ratio decidendi of this case is that the grant of interim bail for election campaigning is a complex issue that depends on the specific facts and circumstances of each case. There is no settled legal principle, and courts must balance individual rights with legal restrictions.
Conclusion
The Supreme Court’s split verdict in Mohd. Tahir Hussain vs. State of NCT of Delhi reflects the ongoing debate about the extent to which individuals in custody should be allowed to participate in the democratic process. The case underscores the need for a nuanced approach, balancing individual rights with legitimate concerns about maintaining law and order.