Custody Parole Over Interim Bail: Delineating the Right to Contest Elections from Judicial Custody

Introduction

This commentary examines the Delhi High Court’s decision in the matter of Mohd Tahir Hussain v. State (NCT of Delhi), dated January 14, 2025. The Petitioner, a former Municipal Councillor, sought interim bail to participate in and campaign for the Delhi Assembly Elections of 2025 from the Mustafabad Constituency. Since the Petitioner has been in judicial custody for his alleged role in the Delhi Riots of 2020 and various related offenses (including a high-profile murder under FIR No. 65/2020), the Court was asked to balance his right to contest elections against the State’s interest in preventing possible witness tampering and preserving the integrity of the ongoing criminal proceedings.

The key question focused on whether an individual in judicial custody could claim interim bail merely on the grounds of intending to file nomination papers and campaign in an upcoming election. The Court ultimately granted “custody parole” rather than interim bail, illustrating a nuanced approach that preserves the Petitioner’s statutory right to contest elections while safeguarding the trial process.

Summary of the Judgment

The Court declined the Petitioner’s application for interim bail. Instead, it granted custody parole for the limited purpose of enabling him to complete all election-related formalities, including:

• Subscribing to the oath required for candidates.
• Filing of nomination papers.
• Opening a requisite bank account for election expenses.

In its ruling, the Court emphasized that the Petitioner, though a former Municipal Councillor, was not a leader of a major political party or a sitting office holder. Moreover, he faced serious charges in multiple FIRs, including murder and offenses under the Unlawful Activities (Prevention) Act, 1967, and the Prevention of Money Laundering Act, 2002. The Court held that, under these circumstances, fully releasing him into the community posed a risk of witness or evidence tampering. By allowing custody parole, the Court ensured that the Petitioner’s statutory right to contest remained intact, without compromising the integrity of the ongoing criminal proceedings.

Analysis

A. Precedents Cited

The Court referenced several key decisions:

1. Arvind Kejriwal v. Directorate of Enforcement, (2024) 9 SCC 577: Here, interim bail was granted to a sitting Chief Minister to contest national elections. The Supreme Court underscored that judicial decisions on bail must account for the peculiarities of individual applicants and their situation. In the present case, the Court distinguished this ruling because the Petitioner was neither a sitting Chief Minister nor a leader of a national party.
2. Dhananjay Singh v. State of NCT Delhi: The accused was granted interim bail to file nomination papers when he was charged under Section 302 of the IPC. However, he was a Member of Parliament at the time, which the Court noted as a critical distinction. Again, the Court’s focus in the present matter was on the Petitioner’s lack of comparable circumstances and the gravity of the charges.
3. NIA v. Mohd. Hafiz Saeed & Ors.: Cited for the principle that custody parole can sometimes be granted for election-related formalities. However, in that case, the State did not oppose the relief, while the State strongly objected here.
4. Digambar Rohidas Agawane v. Directorate of Enforcement: Decided by the High Court of Bombay, this decision clarified that a distinction arises when an accused is not a well-established leader or holds high public office. The Court used this analogy to further distinguish the Petitioner’s position in the current matter.

B. Legal Reasoning

Central to the Court’s rationale was the principle that while the right to contest elections is recognized as a statutory right, it is not granted the higher status of a fundamental right. Consequently, it does not automatically entitle any undertrial or accused person to interim bail. The Court balanced two major considerations:

• The Right to Contest Elections: The Petitioner wished to exercise his right to run in the 2025 Delhi Assembly Elections. The Court acknowledged that he should not be denied the chance to file nomination papers.
• Integrity of Ongoing Trials and Public Safety: The Petitioner faced serious allegations, including homicide and offenses under anti-terror laws. The Court found a real risk that release from custody might enable tampering with witnesses or evidence—particularly given the Petitioner’s local influence and the community’s sensitivity to the riot cases.

By granting custody parole with strict conditions—instead of outright interim bail—the Court ensured that the Petitioner could conduct obligatory tasks indispensable to the election process while mitigating any threat to justice and public order.

C. Impact

This decision impacts several spheres:

• Guidance for Future Bail Applications: The ruling provides a framework for courts to handle requests for interim bail by political hopefuls who are in judicial custody. Custody parole emerges as a viable mid-ground for those wishing to fulfill procedural election requirements without compromising judicial proceedings.
• Limits on Statutory Rights: By underlining that the right to contest elections is not fundamental, the Court discourages the presumption that accused persons or undertrials can secure an expansive bail order merely for campaign-related activities.
• Influence on High-Profile Accused Persons: Where accusations are grave and the accused wields significant local or communal influence, courts are likely to mandate exceptional safeguards when any bail-like relief is considered.

Complex Concepts Simplified

1. Interim Bail vs. Custody Parole: Interim bail generally frees the accused to re-enter society for a limited period, whereas custody parole keeps the accused under partial custody controls while permitting travel or participation in specific activities. In this case, the Court retained close supervision over the accused to prevent misuse of bail privileges.

2. Statutory Right vs. Fundamental Right: While voting or contesting in elections is constitutionally regulated, it remains predominantly a statutory right derived from election statutes (e.g., the Representation of the People Act). Fundamental rights, on the other hand, reach a protected constitutional level (e.g., freedom of speech, life and liberty under Articles 19 and 21). A statutory right does not automatically guarantee the highest level of legal protection, especially when weighed against potential threats to public order.

3. Riot-Related Charges and Serious Allegations: The Petitioner faces multiple FIRs, including allegations under anti-terror provisions. These are severe charges implicating national security and community harmony. Courts adopt a more cautious stance when assessing requests for bail, even for statutory rights such as contesting elections.

Conclusion

The judgment in Mohd Tahir Hussain v. State (NCT of Delhi) refines the legal position concerning bail applications filed by individuals in judicial custody who wish to contest elections. Although the Court affirms the Petitioner’s ability to stand for public office, it refuses full interim bail in light of the gravity of accusations and the attendant possibility of witness tampering. Instead, the Court’s grant of custody parole represents a tailored solution—safeguarding the integrity of the legal process while allowing the Petitioner a limited opportunity to adhere to election protocols.

As a broader precedent, this ruling underscores how courts may enable the statutory right to contest elections without undermining ongoing prosecutions or risking public safety. It illustrates that each case rests on unique facts—where high-stakes charges are involved, “custody parole” may strike the balance between respecting political rights and upholding the sanctity of the criminal justice system.