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Mohd Tahir Hussain v. State Of NCT Of Delhi

Special Leave Petition (Criminal) · 2025 INSC 100Decided 22 Jan 2025
SLP(Crl) No.-000856 - 2025
Justice Pankaj Mithal · Justice Ahsanuddin Amanullah

Background

Mohd. Tahir Hussain, a former Aam Aadmi Party councillor turned AIMIM candidate, was in custody since March 2020 in connection with FIR No. 65/2020 for rioting and the murder of Intelligence Bureau official Ankit Sharma during the February 2020 Delhi riots, along with several other pending riot-related cases and one under the PMLA. Having been denied regular bail, he sought interim bail solely to campaign and canvass for the Delhi Assembly Election 2025 from Mustafabad constituency (the Delhi High Court had already allowed him custody parole just to file his nomination, but not to campaign). He challenged the High Court's refusal to extend that relief to campaigning before the Supreme Court.

Decision Breakdown

Justice Pankaj Mithal would have dismissed the petition outright, reasoning that a right to canvass or campaign is not a fundamental, constitutional, or even statutory right; that recognizing "contesting an election" as grounds for interim bail would open a "Pandora's box" given how frequently elections occur in India; and that it would also sit awkwardly against Section 62(5) of the Representation of the People Act, which bars a person in custody from voting. Justice Ahsanuddin Amanullah disagreed, emphasizing that the petitioner remained a presumed-innocent accused (not a convict), had already secured bail in most of his other cases, and had been in custody a long time. He granted interim bail up to noon on 4 February 2025, subject to strict conditions (no reference to the pending cases or the 2020 riots while campaigning, confinement to the Mustafabad constituency, and surrender of any passport), while also refusing to impose a real-time-location-tracking condition on privacy grounds. Because the two judges could not agree, they directed the Registry to place the matter before the Chief Justice of India for resolution, leaving the final outcome undecided by this particular bench.

Lesson Learnt

The right to contest an election is a statutory right that Indian courts will protect even for an undertrial in custody (through steps like custody parole for nomination formalities), but there is no established right to campaign from jail, and reasonable judges can genuinely disagree on where the balance lies between an accused's presumption of innocence and the risk of using interim bail as a backdoor around continued incarceration.

Official source (sci.gov.in)View Judgment (PDF)

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