Election Canvassing Not A Fundamental Right; Indian Polity Must Be Purged Of Criminals : Patna High Court Rejects Jailed RJD MLA's Plea

Yadav, the sitting MLA from Danapur constituency and again contesting from the same seat, had urged the court for a four-week release window to canvass up to polling on November 6, or, in the alternative, for custody parole to campaign.

Currently lodged in Bhagalpur jail in connection with cases of extortion and organized land grabbing, Yadav had filed his nomination papers while in police custody.

A bench of Justice Arun Kumar Jha noted that Yadav is having antecedent of a number of cases and he has been suffering incarceration in two cases and had ample time to seek bail in those cases or to make the same prayer before the court concerned for his release on interim bail.

"…considering the antecedent and background of the petitioner and pressing demand of the time that the Indian polity should be purged of criminal elements, the prayer of the petitioner could not be acceded to. A balance should be struck between the rights of citizens who deserve a clean India and rights of undertrial prisoners in custody who want to participate in the election process. Obviously the balance will tilt in the favour of common citizens", the single judge observed.

Case in brief

Appearing for the petitioner, Senior Advocate YC Verma argued that Yadav, a nominated candidate of a National Party, must be permitted to reach voters, seek votes, present his manifesto and participate meaningfully in the democratic process.

It was urged that right to seek votes is treated as fundamental right and this ensures a level playing field for a just and fair election.

He placed reliance on Supreme Court's decision in the cases of was placed, inter alia, on orders in Mohd. Tahir Hussain v. State of NCT of Delhi, Arvind Kejriwal v. ED and other decisions to emphasize the HC's plenary power under Article 226.

It was also highlighted that while the petitioner has multiple cases in his past, he has not been convicted, has been acquitted in many, is on bail in several, and is presently in custody in two Khagaul P.S. cases; with the nomination already filed, denial of release for campaigning would render the electoral exercise illusory for him.

On the other hand, Advocate General PK Shahi objected to maintainability of the plea as he pointed out that the petitioner's regular bail petitions are pending before the trial court and the High Court.

In such circumstances, he argued, a criminal writ is impermissible when there are no exceptional grounds and that Article 226 cannot be used as a “ready substitute” for Section 439 CrPC remedies.

He also contended that the petitioner is accused for commission of serious offences and there is every likelihood that once released, he would threaten the witnesses and voters, considering his past history.

He further submitted that in Tahir Hussain's case, the Top court had held right to campaign or canvass is not a fundamental right and that it had also remarked that the said order releasing the Hussain was not to be treated as a precedent.

HC's observations and order

Against the backdrop of these submissions, the Court framed the central question: Does a candidate in custody have a right to interim release to canvass? The Court's answer in the qurry with an 'emphatic no'.

The bench referred to Supreme Court's Judge Justice Pankaj Mithal's opinion in Tahir Hussain judgment (split verdict of January 22, 2025) wherein it was observed thus:

• If interim bail is made permissible on the ground of contesting elections, it will open a Pandora's box inasmuch as in this country election in some form takes place throughout the year
• The accused persons in jail may take undue benefit of it and even if they are not serious in contesting elections
• Canvassing in an election can be done in many ways such as through newspapers, social media, pamphlets, writing letters and it is not necessary that it should be in the physical form.
• The citizens of India deserve a clean India, which means clean politics as well and they should be given a choice to elect people with clean image and antecedents
• It is necessary that people with tainted image, especially those who are in custody and had not been granted bail and those who are undertrial, even if out of jail, be restricted in some way or the other from participating in the election

Justice Jha also relied upon the Supreme Court's verdicts in the cases of Anukul Chandra Pradhan, Advocate vs UOI & Ors 1997, N.P. Ponnuswami vs Returning Officer and Vishwanath Pratap Singh vs Election Commission of India 2022 LiveLaw (SC) 758.

The Court further said that Yadav could not claim his case to be on similar footing to the cases of other persons who had been allowed interim bail because facts and circumstances have been different for all such persons.

"When the right of a citizen to vote is restricted by statutory provisions, the right of a candidate to canvass for his candidature could not be put on any higher pedestal than the right of a common citizen. It goes without saying that this Court is a sentinel on the qui vive", the bench further remarked.

Consequently, the Court concluded that when alternative remedy is available for Yadav (seeking bail), the power under Article 226 could only be exercised under certain conditions/contingencies which aren't met in the present case. His plea was thus dismissed.