To Campaign or Not? The Split Verdict by Supreme Court in Tahir Hussain’s Case

The larger question in this petition was if Hussain can be granted interim relief to campaign during Delhi polls.

The split verdict in Tahir Hussain's bail case is a rare occurrence. 

(Photo: Aroop Mishra/The Quint)

The basic essence of a democracy is a government — by the people, for the people and of the people, but for this formula to be practically implemented, the representatives should be on ground, right?

This has been the moot question before the courts whether the right to campaign and contest elections should be taken into the fundamental cart or not. The recent case of Arvind Kejriwal’s bail during the Lok Sabha election is one of the few examples.

In August 2023, while hearing a case of Habeeb Mohamed vs the Home Secretary, the Madras High Court had observed that the right to seek vote is a fundamental right because democracy is a basic feature of the Constitution.

In addition, the court thus observed that any person who was causing disturbance to the conduct of rallies, meetings, etc for seeking votes, was committing an electoral offence.

On 22 January, the bail application of Tahir Husain in Mohd Tahir Hussain vs State of NCT of Delhi, was finally decided and a division bench of Justice Pankaj Mithal and Justice Ahsanuddin Amanullah pronounced a split verdict of the bail application. While Justice Mithal denied interim bail to Husain, on the other hand, Justice Amanullah allowed his interim bail till the evening of 4 February.

The Supreme Court was hearing Hussain's Special Leave Petition challenging the Delhi High Court's order which refused him interim bail and granted only a custody parole to file nomination to contest from the Mustafabad constituency to the Delhi Legislative Assembly.

Now, in this petition, the larger question was whether Hussain can be granted interim relief to campaign during the upcoming Delhi elections.

Earlier, the Delhi High Court had denied his bail application and granted a limited parole for filing his nomination and opined that merely because Hussain had been a Municipal Councillor, it cannot be a peculiar circumstance entitling him to grant of interim bail.

On the other hand, while allowing Hussain’s bail application, Justice Amanullah acknowledged that the allegations against Hussain are grave and serious, but they remain as only allegations “at the present moment.”

“On the short point of the period undergone under custody (five years) and the fact that bail has been granted in other cases, interim bail can be granted till February 4, 2024, subject to the conditions in Section 482 and 484 BNSS 2023. Hussain should not raise the issues in the FIRs during his campaigning. He should surrender by the noon of February 4, 2024,” said Justice Amanullah while allowing Hussain’s bail application.

 Justice Ahsanuddin Amanullah:

1. While allowing the interim bail application, Justice Amanullah acknowledged that the allegations are grave and serious, stated that they remain as only allegations at the present moment. Further, on the short point of the period undergone under custody for five years and the fact that bail has been granted in other cases, interim bail can be granted till February 4, 2024, subject to the conditions in Section 482 and 484 BNSS 2023

2. Allowed the interim bail

3. Split verdict (1:1)

Justice Pankaj Mithal:

1. While rejecting the bail application, Justice Mithal in his order observed that the right to contest in elections is not a fundamental right. Also, the right to contest the elections has been protected by the High Court's order granting custody parole to file nominations. Justice Mithal observed that allowing interim bail on this ground can open a 'pandora's box' as every undertrial would take this ground

2. Rejected the interim bail

3. Split verdict (1:1)

A Split? Rare in Bail Matters

When two judges do not concur on the same reasonings or conclusions, there’s a split verdict — in this case, the ratio was 1:1.

When there is a split verdict, the matter is listed before the Chief Justice of the concerned court. In this case, it will be listed before Chief Justice Sanjiv Khanna on 23 January, who will then pass an order and constitute a larger bench to hear the matter.

While denying bail to Hussain, Justice Mithal had 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 apprehended that others, whether similarly situated or not, may seek to (mis)use this Judgment.

In this regard, Justice Amanullah observed as follows:

“35. I would therefore, necessarily, insert the caveat that this Judgment has been passed in facts and circumstances specific to this case. Were any litigant, in futuro, to cite this in a later case, I am sure the Court concerned would examine such case on its merits and on its own factual prism. When any court is called upon to apply and/or follow precedent, it is for that court to examine whether or not the precedent is attracted in that particular case.”

There are not many instances where there has been a split verdict in bail matters. But, in 2023, the Supreme Court constituted a special sitting during the evening, where a division bench of Justice Abhay S Oka and Justice PK Mishra differed on granting interim protection to activist Teesta Setalvad.

This was in connection with the FIR lodged in connection with the 2002 Gujarat riots case, and hence, the matter will now be placed before a larger bench.

"There is a disagreement between us on the question of grant of interim protection to her. So, we request the Chief Justice to assign this matter to a larger bench," the bench said as it could not arrive at a unanimous decision, virtually denying any interim relief to Setalvad.

The Right to Contest Elections

Recently, the question and debate around the right to campaign was raised during the Lok Sabha elections, when former chief minister of Delhi, Arvind Kejriwal, approached the Supreme Court seeking the right to campaign for the general elections.

Eventually, Kejriwal was granted bail by the Supreme Court, and accordingly, he joined the campaigning for the Lok Sabha elections.

In Javed v State of Haryana (2003) 8 SCC 369, the Supreme Court held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right — a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right.

There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.

In Habeeb Mohamed judgment (supra), the High Court went on to illustrate the right to seek vote and contest election with reference to a movie scene. The court observed as follows: "Vadivelu, the iconic Tamil comedian, plays the role of an MLA in the film “Maamannan”. He is contesting for re-election. His adversary has a different game plan. Vadivelu is unable to canvass. He is being prevented from even entering villages and localities. Fortunately, technology comes to his rescue. He reaches out to the voters through social media", the judgment stated in the introduction.

Further, the Supreme Court in the case of Jyoti Basu vs Debi Ghosal held that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right.

“It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation," stated The Court.

In 2017, the Delhi High Court was also hearing a petition by the Election Commission of India against a trial court order allowing custody parole to Mukhtar Ansari. 

Justice Mukta Gupta allowed the petition and held that the right to contest election from jail cannot imply that the candidate gets the right to be released from jail for campaigning.

“If the candidate is in custody for an alleged offence, it would be the discretion of the Court to release him or not, depending on the facts and circumstances of the case. When a person in custody fills up a nomination as a candidate, he does not get a vested right to be released for canvassing. He runs the risk if not released on bail to contest election from custody,” the court held.

The right to contest elections has often been a subject of judicial scrutiny, with courts consistently affirming that it is a statutory right rather than a fundamental one.

However, there have been instances where judicial pronouncements have hinted at a broader interpretation, suggesting that this right might have fundamental attributes under certain circumstances.

With Kejriwal's recent bail following a split verdict, the jurisprudence surrounding the right to contest elections faces renewed attention. It remains to be seen how courts navigate this nuanced intersection of statutory and fundamental rights in shaping the democratic framework.

What Happens Next?

The split verdict in Tahir Hussain’s bail application has added a significant layer of complexity to an already contentious matter.

With one judge allowing his bail and another rejecting it, the divergent judicial perspectives highlight the delicate balance between individual liberty and the administration of justice, especially in cases with high political and social stakes.

The primary contention, that Hussain should be granted interim bail to campaign for the Delhi elections, underscores the interplay between electoral rights and legal accountability.

This debate raises important constitutional questions about the rights of undertrials to participate in democratic processes, even while facing serious charges.

The road ahead promises to be intriguing as the matter will now be referred to the Chief Justice of India. It is expected that a larger bench will be constituted to resolve this judicial impasse and provide clarity on the underlying legal and constitutional principles.

The decision of the larger bench will not only shape the contours of bail jurisprudence in politically charged cases but may also set a precedent for balancing the right to participate in democratic processes with the imperatives of the criminal justice system.

As the nation waits for the next chapter in this legal saga, the implications of the verdict are bound to reverberate far beyond the courtroom.

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)