Thursday, January 23, 2025

Chief Justice Sanjiv Khanna to constitute larger bench to decide Tahir Hussain's bail for campaiging in Delhi assembly election

On January 22, 2025, the Supreme Court's division bench of Justices Mithal and Ahsanuddin Amanullah passed an order to refer the case of bail of Tahir Hussain, a former Councilor from Nehru Vihar, East Delhi to Chief Justice Sanjiv Khanna after they gave a split verdict. Hussain had won as Councillor on the ticket of the Aam Aadmi Party (AAP). He was made an accused in the February 2020 riots. He had approached the Supreme Court after he failed to secure an interim bail to campaign for Delhi assembly polls from the High Court. Justice Mithal dismissed Hussain's plea saying no case was made out but Justice Amanullah opined held that  could be released on interim bail. 

Prior to that both judges expressed differing opinions in their 31-page judgement

Justice Mithal observed: "In the event interim bails are to be allowed for purposes of contesting elections, it will open a Pandora's box. Since elections are all year round, every undertrial would come with the plea that he wants to participate in elections and therefore be granted interim bail. This would open floodgates, which in our opinion can't be permitted". He added, "Once such right is recognised, as a sequel, the petitioner would ask for right to vote, which is circumscribed by Section 62 of the Representation of Peoples Act." He opined that releasing him on interim bail would amount to permitting the accused to go for door-to-door canvassing and hold meetings in the locality where the crime took place and witnesses reside. "Hence, there is a high possibility of the accused meeting the witnesses. The chargesheet reveals serious allegations against the accused and that the rooftop of his house/office was used as the "epicentre" for the offences." Justice Amanullah observed that the petitioner was in custody since March, 2020, and had secured bail in most cases and the Delhi High Court allowed him to file nomination. His judgement reads: "Subject to apt conditions, the petitioner can be granted interim bail for limited period. Ordered accordingly. Petitioner is enlarged on interim bail however till February 4 noon". Notably, the Delhi High Court had granted custody parole to Hussain to file nomination papers from the Mustafabad, Delhi Assemly constituency on an AIMIM ticket on January 14, 2025. But the Court refused his plea for interim bail from January 14 to February 9, 2025 to undertake election campaign. The High Court observed that about 11 FIRs were registered against him in connection with violence in North East Delhi on February 24, 2020, during the protests against the Citizenship Amendment Act (CAA). The violence claimed the lives of more than 50 people, mostly Muslims. 

The joint order of Justice Mithal and Amanullah reads: "Since our opinions are differing, we direct the Registry to place the papers immediately before Hon’ble the Chief Justice of India".

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