Supreme Court delivers split verdict on Tahir Hussain plea for interim bail

A Division Bench of the Supreme Court found itself unable to agree on whether former Aam Aadmi Party (AAP) councillor Tahir Hussain should be granted interim bail in a case related to Delhi riots so that he may campaign for the upcoming Delhi Assembly polls as an All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate..A Bench of Justices Pankaj Mithal and Ahsanuddin Amanullah passed the split verdict today. While Justice Mithal rejected Hussain's plea, Justice Amanullah opined that Hussain should be granted interim bail. "Since our opinions have differed, let Registry place this matter before the Chief Justice of India for the constitution of a third judge or to it before a three-judge Bench," Justice Mithal added, after Justice Amanullah expressed his dissenting view this afternoon. .Justice Mithal held that interim bail cannot be granted as it may open a pandora's box and prompt other jailed persons also to frequently seek interim bail to contest elections. "If interim bail is allowed for contesting elections, it will open a pandoras box. Since elections in the country are all year round, every prisoner will come out with a plea that he wants to participate in the elections and therefore he wants interim bail. This will open floodgates of litigation and this cannot be permitted."The judge added that it may also prompt multiple petitions for interim bail to go out of jail and vote, even though such a right is restricted under the Representation of People Act when it comes to prisoners. The judge also observed that there are grave allegations against Hussain and that there is a high possibility that he may influence witnesses if he is allowed out of jail to canvas for votes. The right to campaign for elections is not a fundamental right, the judge reiterated, and it is up to the court's discretion to decide on whether interim bail should be given for such a purpose. Therefore, Justice Mithal held that Hussain has not made out a case for the grant of interim bail. .On the other hand, Justice Amanullah held that Tahir Hussain can be released on interim bail subject to certain conditions."It is settled law that magnitude of offence and gravity is not only criteria for bail cases. I am of the view, subject to appropriate conditions the petitioner be granted bail. Bail only until the forenoon of February 4, 2025," he said. .As conditions for interim bail, Justice Amanullah added that Hussain would be under a strict obligation not to speak on the Delhi riots cases while campaigning. "He would also promptly surrender before the jail authorities after the expiry of the term granted," the judge said. Justice Amanullah also clarified that his ruling should not be cited as a precedent, and that it was pronounced on facts and circumstances specific to the present case. "Learned Brother Mithal has rightly opined that a Pandora’s Box cannot be permitted to be opened by letting a horde of convicts and/or undertrial prisoners seek release for the purpose of trying their luck at the electoral hustings. Likewise, the learned ASG’s apprehension that others, whether similarlysituated or not, may seek to (mis)use this Judgment, is not unjustified," the judge reasoned. Justice Amanullah further said that the grant of interim bail must not be treated as an opinion on the merits of the underlying bail application or the main case before the trial court..Earlier, Hussain had moved the Delhi High Court in the matter, seeking interim bail on the ground that his physical presence would be required for Delhi Assembly election procedures and campaigns.He added that although he is an accused in other cases related to the Delhi riots, he has obtained bail in all other such cases except the case concerning the death of Intelligence Bureau (IB) officer Ankit Sharma during the Delhi riots. The High Court, however, declined to grant him interim bail. Instead, it granted him custody parole. This led Hussain to approach the Supreme Court for relief. .Hearing todayThe hearing today saw the two judges hearing the matter express sharp disagreement with each other over whether Hussain should be granted interim bail.Justice Mithal expressed strong reservations over granting the relief sought by Hussain, given the seriousness of the allegations against him, particularly in a case concerning the death of the IB officer.Justice Mithal added that if poll campaigns were a ground for interim bail, it could open the floodgates in a country like India."If this taken as a ground for grant of interim bail then this ground will be taken by everyone. In a country where elections keep going on," he said.Justice Mithal also noted that even if Hussain were to be granted bail in the present case, he would still remain in jail as is he is yet to get bail in a money laundering case against him."This (present interim bail case) is an academic exercise! If you don't get bail in all cases, this bail will not mean that you will walk out," Justice Mithal said.Justice Amanullah disagreed with this approach."Why should the Supreme Court wait for trial court to decide something? We cannot anticipate that he will not get bail ... If we (Supreme Court) wait for trial court, then it is like we are subservient to the trial court," he said.Justice Amanullah also questioned the slow progress of the trial against Hussain."In four years only four or five eye witnesses were examined? If this case was so important ... He has not been out for single day. You cannot have unlimited liberty to castigate someone. This is not Article 21, it has been denied," the judge said..Representing Hussain, Senior Advocate Siddharth Aggarwal contended that there was a clear case for the grant of interim bail. "I (Hussain) have been kept away from my electorate for the last four years. From March 2020, I have been in continuous custody ... I had no prior antecedents. Only one of defacement in which was I was acquitted. I am not canvassing for any political party. I am doing it for myself. I am not putting up or faking an illness," the senior lawyer argued. .Additional Solicitor General SV Raju countered and argued that Hussain cannot claim any "fundamental right" to campaign for polls outside jail. He added that Hussain played a significant role in orchestrating the Delhi riots and should not be let out on bail.He added that just because former Delhi Chief Minister Arvind Kejriwal was given bail to campaign during the general elections, it would not mean Hussain could claim parity and be granted similar relief. "Arvind Kejriwal was a national convenor of a political party. His case is totally different," the ASG said. The case against Kejriwal did not involve people getting killed, unlike the case against Hussain, he added. Comparing the two cases would be like comparing oranges with apples, he argued. Justice Amanullah replied by questioning the poor progress of the trial against Hussain, despite the State's claim that it was a serious case. "For 5 years, the star witness was not examined. He is out of Delhi now. I don't want to comment much," the judge added. .Senior Advocate Aggarwal (who represented Tahir Hussain) was assisted by Advocates Rajiv Mohan, Tara Narula, Sonal Sarda, and A Mitra..[Read Order].[Read Live Coverage]