The Supreme Court on Wednesday delivered a split verdict on a petition by former Aam Aadmi Party Councillor Tahir Hussain, who is accused in the 2020 Delhi riots case, seeking interim bail to campaign for the upcoming Assembly elections in the national capital, reported Bar and Bench.

Hussain is contesting the elections on an All India Majlis-e-Ittehadul Muslimeen ticket from the Mustafabad seat. The Assembly polls are scheduled for February 5 and the counting of votes will take place on February 8.

A bench of Justices Pankaj Mithal and Ahsanuddin Amanullah was hearing an appeal by Hussain against a January 14 order of the Delhi High Court that refused to grant him bail to campaign for the elections.

Mithal rejected the petition while Amanullah said that the former Aam Aadmi Party Councillor should be granted interim bail.

“Since our opinions have differed, let registry place this matter before the chief justice of India for the constitution of a third judge or to it before a three-judge bench,” Bar and Bench quoted Mithal as saying.

The Aam Aadmi Party had suspended Hussain after he was listed as an accused in the riots case. He subsequently joined the All India Majlis-e-Ittehadul Muslimeen in December.

The case pertained to the clashes that had broken out in North East Delhi in February 2020 between supporters of the Citizenship Amendment Act and those opposing the controversial legislation. The violence left 53 dead and hundreds injured. Most of those killed were Muslims.

Hussain has been in custody since March 16, 2020, in connection with the matter and had 11 cases against him, including a larger conspiracy case related to the riots and a money-laundering case, The Indian Express reported. He has been granted bail in eight of the cases.

One of the charges against him includes the killing of an Intelligence Bureau staffer named Ankit Sharma during the riots. The split verdict on Wednesday came in this case.

On January 14, the High Court refused to grant him interim bail and instead gave him custody parole.

Subsequently, Hussain moved the Supreme Court.

On Wednesday, Mithal said the interim bail cannot be granted to Hussain as it could open a “pandora’s box” that might lead to undertrials in prisons frequently seeking bail to contest elections, Live Law reported.

“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,” Live Law quoted Mithal as saying. “This would open floodgates, which in our opinion cannot be permitted.”

Allowing Hussain interim bail could also lead to multiple petitions seeking interim bail to get out of jail and vote even though such a right is restricted under the Representation of People Act when it comes to prisoners, Mithal noted.

The judge also said there was a high possibility that Hussain may influence witnesses if he was allowed to get out of jail to campaign.

“It may also be worth mentioning that canvassing for 10-15 days would not suffice the purpose in as much as a constituency has to be nurtured for years, for contesting,” said Mithal. “If petitioner had not nurtured it for the past few years sitting in jail, there is no reason why he should be released.”

Amanullah, however, said that Hussain could be released on interim bail subject to certain conditions, Bar and Bench reported.

“It is settled law that magnitude of offence and gravity is not only criteria for bail cases,” Bar and Bench quoted him as saying. “I am of the view, subject to appropriate conditions the petitioner be granted bail. Bail only until the forenoon of February 4, 2025.”

He also noted that the conditions for granting Hussain bail would include not speaking on the riot cases during campaigning. “He would also promptly surrender before the jail authorities after the expiry of the term granted,” Amanullah added.

During the hearing, Senior Advocate Siddharth Aggarwal, representing Hussain, told the bench that there was a clear case for granting him interim bail, Bar and Bench reported.

“I [Hussain] have been kept away from my electorate for the last four years,” Aggarwal told the court on behalf of the former Aam Aadmi Party councillor. “I had no prior antecedents… I am not canvassing for any political party. I am doing it for myself. I am not putting up or faking an illness.”

However, Additional Solicitor General SV Raju, representing the Delhi Police, said that Hussain could not claim a fundamental right to campaign for the elections outside jail.

Hussain had played a significant role in orchestrating the Delhi riots and should not be let out on bail, he claimed.

Mithal also said that Hussain would remain in jail even if he was granted bail in the present case as he was yet to get bail in a money laundering case against him.

“This [present interim bail case] is an academic exercise!” Bar and Bench quoted Mithal as saying. “If you don't get bail in all cases, this bail will not mean that you will walk out.”

On his part, Amanullah also questioned the slow progress of the case against Hussain.

“In four years only four or five eye witnesses were examined?” he asked. “You cannot have unlimited liberty to castigate someone. This is not Article 21, it has been denied.”

Article 21 of the Indian Constitution guarantees the right to life and personal liberty.