Supreme Court Split On Interim Bail To Contest Or Canvass Elections; Papers Sent To CJI

A two-judge Bench of Justices Pankaj Mithal and Ahsanuddin Amanullah heard a Special Leave Petition by an undertrial seeking interim bail to contest and campaign in the 2025 Delhi Assembly elections. The limited question before the Court was whether purpose-based interim bail could be granted to a person in custody to contest elections or to canvass, where multiple criminal cases including alleged rioting, murder and a PMLA case were pending against him.

The Court delivered a split decision. Justice Pankaj Mithal held that interim bail for the purpose of contesting elections or canvassing was impermissible and dismissed the petition insofar as it sought enlargement for campaigning; he allowed only custodial parole earlier granted by the High Court to enable filing of nomination papers. The Court, in its reasoning, observed: "In simple words, interim bail is not permissible for the purposes of contesting elections, much less for campaigning." Justice Mithal warned that allowing interim bail for canvassing would "open a Pandora’s box" and noted that permitting such release would conflict with Section 62(5) of the Representation of the People Act, 1951, which barred voting by persons confined in prison. By contrast, Justice Ahsanuddin Amanullah disagreed and granted limited interim bail subject to conditions, reasoning that the petitioner remained "an accused; not a convict" and that prolonged pre-trial custody and the likelihood of delay in trial process warranted conditional temporary release. He enlarged the petitioner on interim bail until noon of February 4, 2025, with conditions including confinement to the Mustafabad constituency limits during campaigning, deposit of passport, prohibition on referring to pending cases or the 2020 riots while campaigning, and surrender by the stipulated time. Because the Bench recorded differing opinions, the papers were directed to be placed before the Chief Justice of India for further orders.

Background The petitioner faced FIR No. 65 of 2020 (Dayalpur Police Station) in connection with rioting and the alleged murder of an Intelligence Bureau official during the February 2020 Delhi riots; he was also arrayed in multiple other cases, including a PMLA prosecution. The Delhi High Court denied interim bail to campaign but granted limited custodial parole to enable the petitioner to "subscribe oath and to complete formalities in respect of filing his nomination papers." The petitioner challenged that order, arguing that mere filing of nomination was "meaningless" without the ability to canvas and that prolonged incarceration (since March 2020) prejudiced his democratic rights and electoral prospects.

The State opposed interim bail, arguing that the right to campaign was not a fundamental or statutory right, that physical canvassing risked tampering with witnesses in the locality where offences were alleged to have occurred, and that permitting interim bail to contest or canvass would conflict with statutory provisions restricting voting by persons in custody and would encourage misuse. The State relied on precedent including Anukul Chandra Pradhan on the rationale for Section 62(5) and distinguished Arvind Kejriwal v. Directorate of Enforcement as fact-specific.

Both judges reviewed authorities on interim bail and the principles governing grant of temporary release pending trial. Justice Mithal emphasised risks of witness tampering and statutory incompatibility with voting restrictions; Justice Amanullah emphasised the presumption of innocence and the consequences of prolonged detention, observing that bail jurisdiction could be exercised where continued incarceration offended Article 21 and other constitutional protections. Ultimately, in view of the split, the matter was directed to the Chief Justice for placement before an appropriate Bench; the differing orders therefore stand subject to further adjudication. Interim custodial parole already granted for filing nomination papers remained intact.

Case No.: 2025 INSC 100 Case Title: Mohd. Tahir Hussain v. State of NCT of Delhi Appearances: For the Petitioner(s): Mr. Siddharth Aggarwal, Senior Counsel For the Respondent(s): Mr. S. V. Raju, Additional Solicitor General