The Supreme Court recently granted five days of parole to Tahir Hussain after his bail application got stuck following a split verdict. While granting him a custody parole, the bench of Justices Vikram Nath, Sanjay Karol, and Sandeep Mehta allowed his bail application.
The question was referred to them after a division bench of Justices Ahsanuddin Amanullah and Pankaj Mithal delivered a split verdict on his bail application.
Hussain is an undertrial accused in the 2020 North-East Delhi riots case – and had filed the bail application to campaign for the upcoming Delhi polls in February. He is one of the candidates from Mustafabad constituency and has been fielded by the All India Majlis-e-Ittehadul Muslimeen (AIMIM).
Hussain, a former Aam Aadmi Party (AAP) councillor, is booked in the murder case of Intelligence Bureau (IB) staffer Ankit Sharma during the 2020 violence. In March 2024, the trial court framed charges against Hussain and others under Sections 147 and 148 (rioting), 153A (promoting disharmony), 302 (murder) of the Indian Penal Code (IPC), among others.
The SC has partially allowed his application, granting him a custody parole, which means that he will be released from prison during the day (for at least 12 hours from 29 January till 3 February), subject to the payment of the expenses.
From nomination to campaigning, Hussain had moved from the Delhi High Court to the SC. In his bail case, Justice Amanullah held that as of today, Hussain was just an accused irrespective of the offences levelled against him.
His dissenting opinion was crucial to Hussain's parole.
Bail vs Parole?
There is a fundamental difference between a bail and a parole. Bail is more extensive and less restrictive. On the other hand, a parole is a mechanism which allows an accused or most convicted prisoners to be released for a fixed period of time.
The primary legislation dealing with criminal laws in India do not contain any provisions related to parole or furlough. It is administered by the rules made under the Prison Act, 1894; Prisoner Act, 1900; and the prison rules of respective states.
In Delhi, the same is governed by the Delhi Jail Manual covering and in pursuance of the Delhi Prisons Act, 2000 and the Delhi Prison Rules. The Delhi Jail Manual defines parole under Section 2(p) as:
“Parole system” means the system of releasing prisoners from prison or parole by suspension of their sentences in accordance with the rules.
Under Indian law, including the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Code of Criminal Procedure, 1973 (CrPC), bail can be categorised into several types:
Regular Bail is granted under Sections 436 and 437 CrPC (or corresponding provisions in BNSS) for an accused in custody.
Anticipatory Bail, under Section 438 CrPC (now covered under BNSS), allows a person to seek bail in anticipation of arrest
Interim Bail, which is temporary relief granted before the final bail hearing
Default Bail, under Section 167(2) CrPC (or BNSS equivalent), granted when the investigating agency fails to complete its investigation within the statutory period
Statutory Bail, akin to default bail, ensuring the right to bail upon procedural lapses
Special Bail granted under special statutes like the UAPA, the PMLA, the NDPS Act, where stringent conditions apply
Split Verdict That Led to Parole
On 21 January, a division bench of the SC delivered a split verdict on the bail application filed by Hussain seeking interim bail to campaign for the Delhi Assembly elections.
While Justice Pankaj Mithal dismissed the petition, Justice Amanullah allowed Hussain interim bail. In view of the divergence, the Registry was directed to place the matter before the Chief Justice of India either to refer the matter to a third judge or a larger bench.
In the said verdict, there was a conflict between the judges with regard to the right to campaign for the elections.
In his order, Justice Mithal 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. He held:
"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. Secondly, 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 the People Act."Justice Pankaj Mithal
On the other hand, Justice Amanullah, while acknowledging that the allegations are grave and serious, stated that they remain as only allegations at the present moment.
Justice Amanullah remarked that Hussain has already spent five years in custody – and the fact that bail has been granted in other cases, interim bail can be granted till 4 February subject to the conditions in Section 482 and 484 BNSS. He added that Hussain should not raise the issues in the FIRs during his campaigning – and should surrender by the noon of 4 February.
Significance Of Justice Amanullah’s Dissent
In India, custody parole is a temporary release granted to an undertrial or convicted prisoner for specific purposes such as attending family emergencies, performing last rites, or, as in Tahir Hussain’s case, participating in electoral processes.
Unlike bail, which involves the release of an accused from custody pending trial or appeal with certain conditions, parole is granted after conviction and is generally for a limited period under supervision.
While bail is a legal right depending on the nature of the offence, parole is a privilege subject to the discretion of the authorities.
Hussain’s parole was ultimately made possible due to Justice Amanullah’s dissenting opinion in his bail application, where he emphasised the need for interim bail instead of restricting himself to the narrow question of whether the right to contest elections is absolute.
By granting interim bail, he upheld the principle that fundamental rights, including political participation, cannot be disregarded solely due to incarceration.
This dissenting stance paved the way for judicial scrutiny in later proceedings, leading to the Delhi High Court's decision allowing parole. The case underscores the evolving nature of judicial interventions in balancing personal liberty, political rights, and the rule of law.
(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.)