The Supreme Court’s Stance on Interim Bail for Election Campaigning

Introduction

This Judgment commentary addresses the case of MOHD TAHIR HUSSAIN v. STATE OF NCT OF DELHI (2025 INSC 100), which was heard before the Supreme Court of India on January 22, 2025. The petitioner, a former Delhi Municipal Councilor and an accused in multiple criminal cases arising out of the 2020 Delhi riots, sought interim bail primarily to contest and campaign for the Delhi Assembly elections in the Mustafabad constituency. While the High Court had granted him custody parole merely to file his nomination papers, the petitioner appealed to the Supreme Court for broader relief, hoping to physically canvass for votes.

Two separate opinions emerged: Justice Pankaj Mithal, who denied any extended interim bail for electioneering, and Justice Ahsanuddin Amanullah, who dissented, suggesting provisional bail might be granted subject to stringent terms. Because of this difference of opinion, the matter was directed to be placed before the Chief Justice of India.

The suit contains significant discussions on the nature and availability of “purpose-based” or “interim bail,” the role of fundamental rights versus statutory rights in electoral participation, and the implications of granting bail for campaigning where the accused stands charged with serious offenses.

Summary of the Judgment

In essence, the majority opinion of Justice Pankaj Mithal concludes that:

• Contesting elections is a statutory right, not a fundamental right. Although the High Court granted the petitioner custody parole to allow him to file nomination papers, it declined further relief for electioneering on the ground that the law does not recognize campaigning or canvassing as a separate fundamental, constitutional, or human right.
• Interim bail must remain exceptional. Justice Mithal emphasizes that “interim bail” is an extraordinary modality primarily for pressing humanitarian grounds—such as a family funeral or a wedding—but not for political campaigning.
• Floodgates and statutory conflicts. Permitting interim bail for election campaigning might enable accused persons to misuse the electoral calendar, given that elections occur frequently. Moreover, a released undertrial might well be able to cast a vote, in conflict with Section 62(5) of the Representation of the People Act, 1951, which bars prisoners or those in lawful custody from voting.
• Seriousness of charges. The petitioner stands accused of participating in and instigating riot-related crimes, including the murder of an Intelligence Bureau official. The majority opinion finds the gravity of charges enough to justify continued detention.
• No special bail rationale. In the majority’s view, the length of pre-trial incarceration might be an argument toward a regular bail but is not sufficient reason for granting limited, election-based interim bail. Consequently, the special leave petition was dismissed.

On the other hand, Justice Ahsanuddin Amanullah dissented, pointing out:

• Presumption of innocence and Article 21. An undertrial should not be kept incarcerated indefinitely, especially if the trial is prolonged and the final adjudication is not in sight. The presumption of innocence remains until proven otherwise.
• Limited, purpose-based bail. Given the petitioner had already spent several years in jail, and that bail in most connected cases was granted, a restricted interim bail under stringent conditions could be a reasonable middle ground.
• Case-specific relief. Stressing that each request for interim bail should be treated on particular facts, Justice Amanullah held that short-term release for canvassing did not automatically violate any statutory bar if the court crafted appropriate protective terms (e.g., restricted travel, no interference with witnesses, no mention of pending cases in campaign rhetoric).
• Caution against precedential misuse. He urged future courts to remain vigilant in awarding such relief only if the factual matrix so justified, to avoid creating a “Pandora’s box.”

Because of the divergent views, the case has been referred to the Chief Justice of India.

Analysis

A. Precedents Cited

Justice Mithal’s opinion relies on multiple Supreme Court and High Court rulings defining the scope and justifications for interim bail, citing:

• Arvind Kejriwal v. Directorate of Enforcement (2024) 9 SCC 577: This decision recognized interim bail as “an innovation by legal neologism,” commonly allowed in circumstances of urgent personal necessity. Justice Mithal nonetheless distinguished the applicant’s position from that of a nationally recognized politician holding public office.
• S. 62(5) of the Representation of the People Act, 1951 and Anukul Chandra Pradhan v. Union of India (1997) 6 SCC 1: Both highlight the bar on prisoners voting from jail, justifying restrictions on the election-related liberties of persons in custody.
• Athar Pervez (2016 SCC OnLine Del 6662): Provided the foundational definition of “interim bail,” but also clarified that even if regular bail is not feasible, interim bail may be granted for pressing situations like attending a funeral or wedding.

Justice Amanullah’s dissent references the fundamental jurisprudential principle in Niranjan Singh v Prabhakar Rajaram Kharote, (1980) 2 SCC 559 and more recent cases such as Union of India v. K.A. Najeeb, (2021) 3 SCC 713, confirming courts’ abilities to grant bail despite statutory limitations if prolonged incarceration violates constitutional guarantees under Article 21.

B. Legal Reasoning

1. Nature of the Right in Question: The majority emphasizes that while the right to vote or contest an election is a statutory construct, the petitioner’s ability to campaign outside prison is not independently protected as a fundamental right. Justice Mithal reasons that since normal interim bail conditions typically address urgent humanitarian grounds, the lack of any recognized statutory or constitutional right for election campaigning prevents expansion of interim bail on these facts.

2. Public Policy Concerns: The majority’s stance also hinges on the fear that a liberal approach to interim bail for electoral campaigning opens floodgates. Accused persons might frequently invoke such bail pleas purely to leave jail, evading incarceration under the pretext of contesting in perpetually recurring elections in India.

3. Balancing of Interests – Dissenting View: Justice Amanullah cites the presumption of innocence and the petitioner’s long detention. He highlights the real possibility of the petitioner’s fundamental rights being breached due to indefinite delays in trial. A short grant of interim freedom, tightly conditioned, could uphold constitutional norms without necessarily undermining the prosecution’s case. He also underlines that a “case-by-case” approach can mitigate the risk of opening these so-called floodgates.

C. Potential Impact of the Judgment

1. Legal Uncertainty: Since the Supreme Court’s two judges differ, the law around granting interim bail for campaigning remains unsettled until the Chief Justice resolves the matter or a Bench with more judges decides. Lawyers and lower courts must await final clarity on whether election campaigning can ever justify interim bail.

2. Parliamentary and Electoral Reforms: The discussion in Justice Mithal’s opinion—advocating for “clean politics” and restricting those with questionable antecedents—may spark policy debates on the candidacy of undertrials. The legislative domain, or the Election Commission, could revisit eligibility or bail frameworks for candidates under severe criminal allegations.

3. Rights of the Accused and Prisoners: Justice Amanullah’s dissent reaffirms that no matter how grave the allegations, prolonged pre-trial custody demands scrutiny under Article 21 of the Constitution. Future courts may be called upon to weigh the right to stand for public office versus the state interest in preventing misuse of bail.

4. Legal Precedent “Caution”: Both opinions underscore that in borderline circumstances—where a petitioner has partial bail in companion cases or has spent lengthy periods behind bars—courts must tailor bail orders judiciously. The ultimate direction emphasizes that this case must not be used as a blanket invitation for undertrial electoral aspirants to walk out of custody for campaigns.

Complex Concepts Simplified

1. Interim Bail: Unlike “regular bail,” granted until the case concludes, “interim bail” is short-term release that courts may allow in urgent or extraordinary situations. It remains discretionary, subject to conditions like travel restrictions or prohibitions against contacting witnesses.
2. Custody Parole: A narrowly tailored mechanism letting an accused leave prison under supervision solely to complete a specific task—here, the oath-taking and filing of nomination papers—before returning to custody.
3. Article 21 (Constitution of India): Enshrines the right to life and personal liberty. Courts often invoke it to prevent indefinite detention, ensuring the accused’s trial is not unreasonably delayed. A key driver for bail in many criminal statutes.
4. Representation of the People Act, 1951 & Section 62(5): Stipulates that a person confined in prison or in lawful custody cannot vote, reinforcing the idea that someone who is detained does not have full electoral rights.

Conclusion

The Judgment sets an important marker in Indian criminal jurisprudence by directly addressing whether the desire to campaign for electoral office justifies interim bail. Justice Mithal emphasizes that safeguarding public confidence in the electoral system and preventing potential manipulation of bail processes remain paramount considerations. Consequently, no unconditional right exists for an accused to step out of incarceration solely to canvass for votes.

Justice Amanullah’s dissent, however, reminds us that bail jurisprudence demands a focus on individual circumstances, including prolonged pre-trial detention and partial bails in related FIRs. He issues a nuanced warning that denying interim bail opportunities outright might collide with a person’s constitutional liberties and the presumption of innocence.

With two divergent opinions, final resolution now awaits the Chief Justice of India’s intervention or a larger Bench. Although the Court’s majority position currently denies the petitioner the leeway to fully campaign, the legal debate on reconciling electoral participation with undertrial incarceration continues. In the interim, courts will likely remain cautious, granting only very limited custody parole while looking to more definitive guidance from the apex court’s larger Bench on the balancing of statutory law, constitutional freedoms, and the practical realities of electoral contests.