1. Accused in rioting, murder, and money laundering cases seeks interim bail to campaign for assembly elections after receiving conditional parole for filing nomination papers. (Para 2 , 3 , 4 , 5 )
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2025 Supreme(SC) 167
SUPREME COURT OF INDIA
PANKAJ MITHAL, AHSANUDDIN AMANULLAH, JJ.
Mohd. Tahir Hussain – Petitioner
Versus
State of NCT of Delhi – Respondent
Special Leave Petition (Criminal) No. 856 of 2025
Decided On : 22-01-2025
Advocates appeared:
For the Petitioner(s): Mr. Siddharth Aggarwal, Sr. Adv. Mr. Rajiv Mohan, Adv. Ms. Tara Narula, Adv. Ms. Sonal Sarda, Adv. Ms. Shivangi Sharma, Adv. Ms. Noyonika Deori, Adv. Mr. Rishabh Bhati, Adv. Ms. A. Mitra, Adv. Mr. Karan Dhalla, Adv. Ms. Vismita Diwan, Adv. Mr. Sujoy Chatterjee, AOR
For the Respondent(s): Mr. Suryaprakash V. Raju, ASG Mr. Annam Venkatesh, Adv. Mr. Zoheb Hussain, Adv. Mr. Rajat Nair, Adv. Mr. Hitarth Raja, Adv. Mr. Mukesh Kumar Maroria, AOR
For the Petitioner(s): Mr. Siddharth Aggarwal, Sr. Adv. Mr. Rajiv Mohan, Adv. Ms. Tara Narula, Adv. Ms. Sonal Sarda, Adv. Ms. Shivangi Sharma, Adv. Ms. Noyonika Deori, Adv. Mr. Rishabh Bhati, Adv. Ms. A. Mitra, Adv. Mr. Karan Dhalla, Adv. Ms. Vismita Diwan, Adv. Mr. Sujoy Chatterjee, AOR
For the Respondent(s): Mr. Suryaprakash V. Raju, ASG Mr. Annam Venkatesh, Adv. Mr. Zoheb Hussain, Adv. Mr. Rajat Nair, Adv. Mr. Hitarth Raja, Adv. Mr. Mukesh Kumar Maroria, AOR
Interim bail for campaigning in elections is not permissible as it is not a fundamental right and could lead to misuse of the legal process.
Headnote:(A) Representation of the People Act, 1951 - Section 62(5) - Interim bail - The petitioner sought interim bail to contest the Delhi Assembly Elections while in custody for serious charges including rioting and murder - The court ruled that the right to campaign is not a fundamental right and interim bail for election purposes is not permissible, as it could lead to misuse and complicate legal proceedings. (Paras 6, 12, 24, 30)
(B) Bail - The court emphasized that the grant of interim bail is not a right and should be exercised cautiously, especially in cases involving serious allegations. (Paras 10, 24, 27)
Facts of the case:
The petitioner, involved in multiple serious cases, sought interim bail to campaign for elections while being granted only custody parole for filing nomination papers. (Paras 3, 4)
Findings of Court:
The court found no grounds for granting interim bail for campaigning, emphasizing the potential for misuse and the need for clean politics. (Paras 24, 30)
Issues: The main issues were whether interim bail could be granted for campaigning and the implications of allowing such a request. (Paras 8, 12)
Ratio Decidendi: The court held that interim bail for campaigning is not justified, as it could lead to undue influence on witnesses and complicate the electoral process. (Paras 24, 30)
Result: The Special Leave Petition was dismissed, allowing only custody parole for filing nomination papers.
Legal Category Hierarchy
- crime and sentencing
- constitutional law
- practice and procedure
Table of Contents
2. Petitioner asserts right to campaign and long incarceration; Respondent contends campaigning is not a fundamental right and conflicts with statutory prohibitions on prisoners voting. (Para 5 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
3. Divergent views on whether the right to campaign justifies interim bail versus risks of witness tampering and statutory prohibitions on prisoners voting. (Para 6 , 7 , 9 , 10 , 11 , 16 , 18 , 21 , 23 , 28 )
4. Conflict between discretionary interim bail for democratic participation and statutory restrictions on prisoners' rights under the Representation of the People Act. (Para 13 , 14 , 24 , 26 , 27 )
5. Due to differing judicial opinions, the matter is referred to the Chief Justice of India. (Para 26 , 29 , 30 , 31 , 32 )
6. Is the right to campaign or canvass in an election a fundamental or constitutional right?
One judge held that the right to campaign or canvass is neither a fundamental, constitutional, nor human right, nor is it recognized under any statute. (Para 6 )
7. Can interim bail be granted specifically for the purpose of contesting or campaigning in an election?
The court was divided; one judge ruled it impermissible to avoid litigation floodgates and statutory conflicts, while the other granted it citing long incarceration and Article 21. (Para 12 , 13 , 24 , 29 )
8. Can a person confined in prison vote in an election under Indian law?
No, Section 62(5) of the Representation of the People Act, 1951, prohibits any person confined in prison or in lawful police custody from voting in any election. (Para 13 , 14 , 18 )
9. Do statutory restrictions on bail oust the jurisdiction of constitutional courts to grant bail?
No, statutory restrictions do not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution, especially when trial is prolonged. (Para 26 )
10. Can a court mandate the real-time location sharing of an accused as a condition for bail?
No, imposing bail conditions that enable the police to track every movement of the accused using technology violates the right to privacy guaranteed under Article 21. (Para 31 )
ORDER :
PANKAJ MITHAL, J.
1. Heard Mr. Siddharth Aggarwal, learned senior counsel appearing for the petitioner and Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent-State.
2. The petitioner is in custody in connection with FIR No. 65 of 2020 dated 26.02.2020 registered at Police Station Dayalpur, District North East, Delhi in connection with 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 PMLA are pending consideration and the petitioner is allegedly involved in all of them.
3. The petitioner so far has not been successful in getting bail in the above case and some other cases, so he applied to the High Court for grant of interim bail from 14.01.2025 to 09.02.2025 simply to participate and contest Delhi Assembly Election, 2025 from Mustafabad Constituency, Delhi. It may be remembered that the petitioner was earlier a councilor from the ticket of the Aam Aadmi Party. However, subsequently he left the said party and was given ticket to contest the Assembly Elections by the All India Majlis-e-Ittehadul Muslimeen (AIMIM). He took the ticket to contest the Assembly Elections fully knowing that he is in jail in connection with several cases in some of which he may have been granted bail but continues to languish therein and so he has to participate in the election remaining behind the bars.
4. The interim bail application moved by the petitioner was considered by the High Court and was ultimately disallowed by the order impugned dated 14.01.2025 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. In this way, though the petitioner has no fundamental right to contest the elections but his statutory right to that effect was duly protected.
5. The petitioner is not satisfied by the grant of custody parole for filing his nomination enabling him to participate in the election and has thus preferred this Special Leave Petition contending inter alia that permitting filing of nomination is meaningless if he is not allowed to campaign and canvass.
6. 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.
7. The allegations against the petitioner in the present case are not only in connection with the rioting but also of the murder of the official of the Ministry of Home Affairs, Government of India. The allegations made against the petitioner, if considered cumulatively along with the chargesheet which has been submitted on 02.06.2020 reveals the seriousness of the charges levelled against the petitioner. The allegations against the petitioner are also to the effect that his house/office was being used as the epicenter for the commission of the aforesaid offences in which murder of one Ankit Sharma is a sequel. On the rooftop of petitioner’s house/building objects like stones, bricks, petrol bombs, acid drums etc. were recovered which were used during the riots, as per material on record. It has come on record in the order impugned that many material witnesses, especially in connection with the present FIR No. 65 of 2020 are yet to be examined.
8. In the aforesaid facts and circumstances and keeping in mind the submissions of Sh. Siddharth Aggarwal, learned senior counsel for the petitioner, who has limited/confined his a
