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The Supreme Court of India, on January 22, 2025, delivered a split decision on a special leave petition seeking interim bail filed by Mohammad Tahir Hussain. The petition pertains to his alleged involvement in the 2020 Delhi riots and the murder of Ankit Sharma, an official with the Intelligence Bureau. The matter was heard by Justices Pankaj Mithal and Ahsanuddin Amanullah, who presented differing views. The matter has now been referred to the Chief Justice of India (CJI) for further directions on assigning the case to another judge or a larger bench.

The petitioner, a former Aam Aadmi Party (AAP) councillor, is facing charges under multiple FIRs, including FIR No. 65/2020, related to offences of rioting, murder, and violations under the Prevention of Money Laundering Act (PMLA). He sought interim bail to campaign and contest the upcoming Delhi Assembly elections on an All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) ticket from the Mustafabad constituency.

Previously, the Delhi High Court had denied his request for interim bail on January 14, 2025, while granting him conditional custody parole to file nomination papers. Dissatisfied with this decision, the petitioner approached the Supreme Court, arguing that the right to effectively contest elections required the ability to campaign.

Senior Advocate Siddharth Aggarwal, appearing for the petitioner, contended that his prolonged incarceration, spanning nearly five years, violated his rights. He argued that merely allowing the filing of nomination papers without the opportunity to canvass was inadequate for a fair electoral process. He further asserted that the petitioner’s rights under the Constitution were compromised due to the denial of an effective chance to connect with the electorate.

The counsel highlighted that the petitioner had been granted bail in a majority of the cases against him, with the remaining cases still pending before other courts. The petitioner’s clean record prior to the riots and the systemic delays in completing trials were cited as grounds for granting interim relief.

Justice Mithal rejected the plea for interim bail, ruling that the right to campaign or canvass for elections is not a fundamental, constitutional, or human right. He noted that the petitioner’s involvement in serious allegations, including the murder of a government official, and his role as an instigator and facilitator during the riots, undermined his position.

Justice Mithal noted the potential risk of setting a precedent, observing that granting interim bail for election purposes could lead to an influx of similar petitions from incarcerated individuals seeking to contest elections. He stated: "The grant of interim bail for contesting elections would mean permitting the accused to cast his/her vote, which would be antithetical to the provisions of Section 62(5) of the Representation of People Act, 1951."

Referring to the allegations against the petitioner, Justice Mithal observed that the recovery of petrol bombs, acid drums, and other incriminating materials from his residence raised grave concerns. He added that releasing the petitioner for campaigning could lead to witness tampering, particularly given the locality’s connection to the alleged offences.

Justice Amanullah, dissenting from Justice Mithal, opined that the petitioner should be granted limited interim bail until February 4, 2025, with stringent conditions. He noted that the severity of the allegations alone should not preclude the grant of bail, especially considering the prolonged period of incarceration and the lack of significant progress in the trial.

He observed: "Magnitude and gravity of the offence alleged are not grounds, in and by themselves, to deny bail, more so when trial is prolonged."

Justice Amanullah noted that the democratic process necessitates providing candidates an opportunity to communicate with voters. He stated that the petitioner’s release for a limited period, under strict supervision and restrictions, would balance his rights with public interest.

Justice Amanullah directed that during his release, the petitioner must refrain from discussing pending cases or the Delhi riots of 2020. Furthermore, he would be restricted to the limits of the Mustafabad constituency, with additional conditions such as the surrender of his passport and periodic reporting to the authorities.

Due to the divergence in opinions, the matter has been referred to Chief Justice of India Sanjiv Khanna for further directions. The case may be placed before a third judge or a larger bench for final adjudication.

Cause Title : Mohd Tahir Husssain Vs. State of NCT of Delhi

Case No :    SLP (Crl) No. 856 /2025

Date of Judgment : 22.01.2025

Bench: Justice Pankaj Mithal and Justice Ahsanuddin Amanulla

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