New Delhi: A two-judge bench of the Supreme Court Wednesday gave a split decision on the bail plea of former AAP councilor Tahir Hussain, who is the All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate from Mustafabad in the upcoming Delhi polls.
Hussain is facing criminal prosecution for his alleged involvement in the February 2020 North-East riots. He is named in 11 FIRs, including the one related to the murder of Intelligence Bureau staffer Ankit Sharma. Hussain is also named in the FIR related to a larger conspiracy behind the riots. He wanted bail to enable him campaign for the Delhi polls.
Justice Pankaj Mithal, who headed the bench, dismissed Hussain’s plea for an interim bail. In his view, accepting Hussain’s request for bail because he has to contest elections would open a Pandora’s box, giving an opportunity to every undertrial to seek relief on this ground.
Justice Amanullah Khan, however, differed with Justice Mithal’s observations. Justice Khan noted that Hussain had already undergone five years in custody and was on bail in eight other cases linked to the riots. Though the allegations against Hussain were serious and grave, they were only allegations at the present moment, the judge said. His five-year long incarceration in the case was in the teeth of Article 21 (equality before the law) of the Constitution, the judge remarked.
Since the two judges differed in their opinion, the matter would now be placed before the Chief Justice of India (CJI) so that it can be referred to a larger bench of three judges. The new bench would re-hear the arguments in the case.
Hussain has moved the top court against a Delhi High Court order that refused to grant him interim bail to file his nomination papers. The former AAP leader was given custody parole to go to the District Magistrate’s office for filing his nomination papers.
Hussain has sought bail in the Ankit Sharma murder case. He is already on bail in eight other FIRs registered in connection with the 2020 riots.
Hussain’s counsel Siddharth Aggarwal argued before the court that his client deserved bail given the circumstances prevailing now. “I have been kept away from my electorate for the last four years. From March 2020, I have been in continuous custody. I had no prior antecedents. Only one of defacement in which I was acquitted. I am not canvassing for any political party, but for myself,” Aggarwal told the bench.
He further informed the bench about Hussain’s bail applications pending in the other cases.
In response, additional solicitor general (ASG) S.V. Raju opposed Hussain’s argument that it was his fundamental right to campaign for polls outside jail. Appearing for the Delhi Police, Raju accused him of orchestrating the riots and vehemently objected to Hussain’s argument that the benefit of an earlier SC judgement granting bail to AAP founder Arvind Kejriwal to campaign during the Lok Sabha elections, should be extended to him.
The two cases were on different footing, as Kejriwal was not accused of killing people, he told the court, rejecting the comparison drawn by Hussain’s lawyer while asking for interim bail.
Raju claimed campaigning for elections was “only a ruse to get interim bail”.
The ASG pointed out that though Hussain belonged to the Aam Aadmi Party, he is contesting elections from a different party this time. “A candidate seeking to contest elections has to nurture the constituency for the past five years and cannot seek to contest at the last moment,” he added.
Agreeing with the Delhi Police’s stand, Justice Mithal observed that the right to contest elections is not a fundamental right and that it has been protected by the HC order granting him custody parole to file nominations.
“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 cannot be permitted,” Justice Mithal noted in his order.
The judge also disagreed with Hussain’s argument that he had the right to campaign. If this argument is recognized then, as a sequel, Hussain, the judge remarked, would ask for the right to vote.
Justice Mithal’s order also touched upon the fact that Hussain would be back canvassing in the same area where the riots took place. He would be doing door-to-door campaigns and this might take him to the locality where the crime took place. There is a high possibility that he would meet the witnesses, the judge pointed out.
Since the allegations were serious, considering the rooftop of his house was used as the epicentre for the offences, Justice Mithal opined against granting bail to Hussain for campaigning.
The judge also took into account the fact that Hussain is yet to be given bail in a money laundering case. Hence, grant of bail in the present case would be an academic exercise as it would not let him walk out of the jail due to his incarceration in the other, the judge said.
Justice Amanullah, on the other hand, was of the view that Hussain can be released on bail, subject to certain conditions and only until the forenoon of 4 February. One of the conditions suggested by the judge was that Hussain would be under strict obligation not to speak on his cases during the campaigning.
The judge strongly disapproved of Justice Mithal’s reasoning that Hussain’s release would be an academic exercise in view of his custody in the money laundering case.
“Why should the Supreme Court wait for the trial court to decide something? We cannot anticipate that he will not get bail. If we wait for the trial court, then it is like we are subservient to the trial court,” he observed.
The SC judge was also critical of the slow pace of the trial in the Ankit Sharma murder case, after noting that in the last four years only four of the five prosecution witnesses had been examined. The lone witness left had not appeared even once.
“He (Hussain) has not been out for a single day. You cannot have unlimited liberty to castigate someone. This is not Article 21, it has been denied,” Justice Amanullah said.
(Edited by Tony Rai)