Supreme Court bench divided on riot accused Tahir Hussain’s plea for interim bail to campaign for Delhi Assembly polls

In light of the contrasting opinions, the matter will now be placed before the Chief Justice of India for allocation to a larger three-judge bench.

Hussain sought interim bail from January 14 to February 9 to participate in the Assembly elections as a candidate from Mustafabad. On January 14, the HC refused to grant him interim bail but allowed him custody parole to file his nomination.

Dismissing the interim bail plea, Justice Mithal said, “Most of the cases against the petitioner are in respect of riots in Delhi during February 2020 and in many of them, he had been granted bail. Nonetheless, the present case pertains not only to rioting but also the murder of one Ankit Sharma, an official of the Intelligence Bureau of the Ministry of Home Affairs, Government of India.”

The judge said “the allegations against the petitioner, if considered cumulatively or even independently in the present FIRs, are of a very serious nature”. “And it has come on record that many material witnesses, especially in connection with FIR 65, are yet to be examined,” he added.

Justice Mithal said that while disallowing interim bail, the high court “has protected the right of the petitioner to contest the election, as he has been granted custody parole conditionally for subscribing the oath and completing formalities in respect of filing nomination papers”.

The verdict said that Hussain “is an Indian citizen and his rights as a citizen are to be respected”. “Nonetheless, as the petitioner is involved in 11 cases, including the one in question and others under PMLA, his bona fides as a citizen get diluted,” it further said.

The verdict also held that participation in elections is not a fundamental right and that the right to canvassing is neither a fundamental right nor recognised under any statute.

‘Will open a Pandora’s box and floodgate of litigation’

Justice Mithal said, “Normally, if such a plea is raised, the party is permitted to file nominations but not to canvass. This is what has been done in the present case as well. In the event interim bails are allowed for the purpose of contesting election, it will open a Pandora’s box. And since elections in the country are all year round, every undertrial would come up with the plea that he wants to contest and participate in the election and, therefore, he may be granted interim bail. This will open a floodgate of litigation, which speaking for myself, cannot be permitted.”

He added, “Secondly, once such a right is recognised, the sequel of it would be that the petitioner would also ask for the right to vote, which otherwise is also a legally recognised right but is circumscribed by Section 62(5) of the Representation of the People Act, which lays down that no person shall vote at any election if he is confined in prison or is in the lawful custody of the police. Permitting interim bail would necessarily imply granting the right to vote to such a person.”

Justice Mithal further said, “Moreover, permitting release on interim bail for the purpose of canvassing amounts to permitting the petitioner to do door-to-door canvassing and other physical canvassing. This would mean that the petitioner would be holding meetings in the locality and visiting voters door to door.”

The court pointed out that since the incident occurred in the same locality, if the witnesses are also from that area, allowing Hussain to canvass freely could lead to him running into the witnesses.

‘Only allegations’

On the other hand, allowing Hussain’s plea for interim bail, Justice Amanullah said, “I have examined the allegations against the petitioner. No doubt they are grave and reprehensible, but as of this moment, they are exactly that — allegations. It is settled law that the magnitude and gravity of the offence alleged are not grounds in itself to deny bail. No court of law has rendered adjudication thereon.”

The judge noted that “the petitioner has been in custody since March 2020. He has secured bail in a majority of the cases”. “The High Court has already permitted him to file his nomination and consequently stand as a candidate,” he added.

Justice Amanullah added, “On the short point of the 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.”

Justice Amanullah directed that Hussain be enlarged on interim bail until noon on February 4, subject to conditions.

“Additionally, he would be under strict obligation not to raise the issue of any of the FIRs or the incident. He should also promptly surrender latest by noon on February 4, 2025, before the jail authorities concerned,” the judge directed.

Justice Amanullah also questioned the prosecution over the delay in trial and wondered why only four of the five eyewitnesses had been examined so far despite the chargesheet being filed in 2020.

“This is a matter of life and liberty… that is why we have listed day-to-day… why have you not completed the trial since five years? Just examined four out of five eye-witnesses? The chargesheet was filed on 02.06.2020! All this has to be looked at. You can’t castigate somebody like this! He (Tahir Hussain) has not been out of jail even for a day in five years. We can’t shut our eyes. What is Article 21 of the Constitution for?” he said.

As the judge referred to the submissions of Senior Advocate Siddharth Aggarwal, appearing for Hussain, who sought parity with AAP chief Arvind Kejriwal who was granted interim bail to campaign for Lok Sabha polls, Additional Solicitor General S V Raju, representing the Delhi Police, said the two cannot be compared. He said in Kejriwal’s case, 53 people were not dead and hundreds weren’t injured but it was related to allegations of graft in connection with the liquor policy.

The riots which erupted against the Citizenship Amendment Act and National Register for Citizens left 53 dead and over 700 injured.