Summary
A two-Judge Bench delivered a split verdict on an undertrial's plea for interim bail to campaign in the Delhi Assembly Election, 2025. The High Court had refused interim bail but granted custody parole to file his nomination. Mithal J. held that interim bail is not permissible for contesting, let alone campaigning, and would dismiss the SLP. Amanullah J. would grant limited interim bail, given nearly five years in custody and bail in most other cases. The matter was referred to the Chief Justice of India.
Issues
- Whether interim bail can be granted to an undertrial so that he can contest, or campaign in, an election.
- Whether a right to campaign or canvass is a fundamental, constitutional or statutory right.
- Whether long incarceration and bail granted in other cases justify limited interim bail for campaigning, and whether such relief would be academic where the petitioner remains in custody in other cases.
Provisions considered
- Section 62(5), Representation of the People Act, 1951Mithal J. held that interim bail for contesting would logically mean letting the accused vote as well. That would conflict with Section 62(5), under which no person confined in prison or in lawful police custody may vote. He relied on Anukul Chandra Pradhan, which upheld the restriction. (¶¶ 13, 14)
- Article 136, Constitution of IndiaMithal J. found no case for exercising the Court's discretionary power under Article 136 to interfere with the High Court's refusal of interim bail. (¶ 25)
- Articles 14 and 21, Constitution of IndiaIn the separate opinion, Amanullah J. (paras 26-27 of his opinion) held that statutory limits on bail do not oust a constitutional court's power to grant it. He also held that the gravity of the allegations alone cannot justify denying bail where the petitioner's rights under Articles 14 and 21 are engaged and the trial is prolonged.
- Sections 480(3)(b) and 482(2)(ii), Bharatiya Nagarik Suraksha Sanhita, 2023Amanullah J. (para 30 of his opinion) would have granted interim bail until noon on 04.02.2025 on the conditions in these provisions: not committing a similar offence, and not inducing, threatening or promising any person acquainted with the facts. He added further campaign-specific conditions.
Held
- Per Mithal J.: no statute provides for interim bail, but courts grant it in special contingencies such as a death or a wedding in the family. Contesting or canvassing in an election has never been recognised as such a ground. Recognising it would open a Pandora's box, because elections are held throughout the year and undertrials could misuse it. (¶¶ 9, 10, 11, 12)
- Per Mithal J.: the right to campaign or canvass is not a fundamental, constitutional, human or statutory right. The petitioner's statutory right to contest was protected by the custody parole to file his nomination. Canvassing can be done through newspapers, social media, pamphlets, letters and party workers. Physical door-to-door campaigning in the very locality of the incident carried a high risk of tampering with witnesses. (¶¶ 4, 6, 16, 18)
- Per Mithal J.: long incarceration and slow progress of the trial bear on regular bail, which was pending before the High Court, not on purpose-specific interim bail. Arvind Kejriwal was distinguished because the petitioner there was a Chief Minister and the President of a national party. Since the petitioner remained in custody in two other cases, interim bail in this case would be academic and futile. (¶¶ 17, 19, 20, 22, 23)
- Per Mithal J.: interim bail is not permissible for contesting elections, much less for campaigning. The High Court made no error in refusing interim bail and allowing only custody parole for taking the oath and filing nomination papers. He also observed that persons with a tainted image, especially those in custody, should be restricted in some way from participating in elections. (¶¶ 21, 23, 24, 25)
- Per Amanullah J., dissenting (paras 26-29 of his opinion): the allegations, however grave, remain allegations, and the petitioner is an accused, not a convict. The State's argument that interim bail would be academic because of custody in other cases was rejected: the relief cannot depend on what happens in matters pending before subordinate courts. Given custody since March 2020 and bail in most cases, limited interim bail could be granted.
- Per Amanullah J. (paras 30-35 of his opinion): interim bail on conditions, including that the petitioner not refer to the pending cases or the 2020 Delhi riots, stay within the Mustafabad constituency and deposit his passport. Following Frank Vitus, no real-time location-sharing condition was imposed. He stressed that his view turned on the specific facts and was no opinion on the merits of the regular bail.
Result
Split verdict. Mithal J. would dismiss the SLP, with liberty to pursue regular bail before the High Court. Amanullah J. would grant interim bail until 04.02.2025 on conditions, modifying the impugned judgment pro tanto. Because the opinions differed, the Registry was directed to place the papers immediately before the Chief Justice of India.