2-judge SC bench refers Tahir Hussain bail plea to CJI after split verdict
Tahir Hussain, a former Aam Aadmi Party councillor who is facing multiple cases in connection with his alleged role in the 2020 Delhi riots, sought bail to contest the Delhi elections
A two-judge Supreme Court bench on Wednesday gave a split verdict on former councillor Tahir Hussain’s interim bail plea to contest the February 5 Delhi polls and referred the matter to the Chief Justice of India (CJI) to either assign it to a third judge or constitute a larger bench of three judges.
Justice Pankaj Mithal said it would open a Pandora’s Box if the interim bail is given for contesting elections. He added elections are held throughout the year and every undertrial will say that they want to contest elections. “This may open a floodgate of litigation and this cannot be permitted.”
Justice Ahsanuddin Amanullah said the magnitude and gravity of the crime cannot be the sole criteria to deny relief as he granted Hussain interim bail until February 4. He added Hussain shall not be allowed to speak about the pending cases during campaigning and directed him to surrender before the jail authorities on the expiry of the bail.
The bench cited the difference of opinion while directing the Supreme Court Registry to place the matter before the CJI.
Hussain, a former Aam Aadmi Party councillor, is facing multiple cases in connection with his alleged role in the 2020 Delhi riots. He sought bail to contest the Delhi elections after the All India Majlis-e-Ittehadul Muslimeen (AIMIM) fielded him from the Mustafabad constituency.
The Delhi high court on January 13 rejected his plea for interim bail from January 14 to February 9. It granted him custody parole to enable him to file his nomination.
Senior advocate Siddharth Agarwal, who appeared for Hussain, said the high court ought to have considered this relief would be meaningless unless he is allowed to canvas for the elections after recognising his client’s right to file nomination. He added the state has not been fair as Hussian has remained in custody since March 2020. Agarwal said the material and witnesses in the trial remain to be examined despite the passage of five years.
Justice Mithal maintained the allegations against Hussain were serious as the chargesheet showed that his house was used as the “epicentre” for offences. He noted that granting interim bail had hazardous consequences as witnesses are from the same locality and there is a possibility of tampering with evidence during door-to-door campaigning.
Justice Mithal acknowledged Hussain’s long incarceration and delayed trial and added these could be grounds for regular bail plea that the high court is scheduled to hear on February 20.
He said granting interim bail would be a “futile” and “academic” exercise after he was told that Hussain is in custody in a money laundering case in which his bail plea is yet to be heard. “Canvassing for 10-15 days would not satisfy any purpose as a constituency has to be nurtured for years.”
He added the right to canvas is neither a fundamental nor a legal right. “Nonetheless, as the petitioner is involved in 11 cases, including the one in question and the other under PMLA [Prevention of Money Laundering Act], his bonafides as a citizen get diluted,” said Justice Mithal. He added the high court ensured Hussain’s right to contest elections by permitting him to file his nomination.
Justice Amanullah said only four of five eyewitnesses have been examined in five years and Hussain has not come out of the prison even for a day. “We have to take judicial notice of this when we consider bail. We would not shut our eyes to this fact.” He noted Hussain is accused of inciting a mob that murdered Intelligence Bureau staffer Ankit Sharma. “This is a question of life and liberty. He has been in custody for almost five years. Maybe there are antecedents but the charge against him is of exhortation. When our conscience allows that he is entitled to regular bail, why should we refrain from going the full way and granting him interim bail.”
Additional solicitor general SV Raju, who appeared for the Delhi Police, called Hussain’s move to contest elections a gimmick for getting bail. He added every undertrial will stand for elections if he is granted the relief. Raju said the AIMIM can contest for Hussain and added many have contested and won polls from jails.
Justice Amanullah countered this view saying this is democracy and people vote for candidates. He emphasised that the electorate has a right to meet their candidates.
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