The Supreme Court of India today referred to the fair trial afforded to 26/11 terrorist Ajmal Kasab during proceedings in the case involving separatist leader Yasin Malik. The court was hearing a plea from the Central Bureau of Investigation (CBI), which had challenged a Jammu court order requiring Malik to appear in person for his trial. The case concerns two major incidents—the 1990 killing of four Indian Air Force personnel near Srinagar and the 1989 kidnapping of Rubaiya Sayeed, the daughter of the then Home Minister Mufti Mohammad Sayeed. Malik, who is currently serving a life sentence for a terror funding conviction in Delhi’s Tihar Jail, is the main accused in both cases.
CBI’s Opposition to Malik’s In-Person Appearance
In 2022, a court handling cases under the Terrorist and Disruptive Activities (Prevention) Act (TADA) had directed Malik to attend the proceedings in person. However, Malik has expressed his desire to be physically present at the trial. The CBI, represented by Solicitor General Tushar Mehta, argued against his appearance, citing concerns that it could destabilise the already volatile situation in Jammu and Kashmir. Mehta further raised alarm that transporting Malik might endanger witnesses and exacerbate security issues.
Representing the central agency, Mehta urged the bench, which included Justice AS Oka and Justice AG Masih, to avoid transporting Malik. He pointed out that Malik’s presence could escalate tensions in the region and make the trial more difficult to manage.
The Bench’s Concerns Over Video Conferencing
Justice Oka raised concerns over the practicality of conducting effective cross-examinations via video conferencing. Given Jammu and Kashmir’s historically poor internet connectivity, he questioned whether the process could be fair and efficient. Mehta responded by suggesting an alternative: transferring the trial to Delhi, should Malik insist on attending the proceedings in person. He even accused Malik of “playing tricks” to delay the trial or gain an advantage.
The debate centred around the balance between the safety and security of the trial, the rights of the accused, and the need for justice to be served without compromising public order. Justice Oka was particularly focused on ensuring that the trial was conducted fairly while maintaining security, especially given Malik’s prominence as a leader of the Jammu and Kashmir Liberation Front (JKLF).
Reference to Kasab’s Fair Trial
In a striking moment during the hearing, Justice Oka referred to the fair trial afforded to Ajmal Kasab, the lone surviving terrorist from the 26/11 Mumbai attacks. He cited the Kasab case to underscore that despite the severity of the crimes and the national security risks posed by high-profile terrorism trials, the judiciary must ensure that the accused are provided with their constitutional right to a fair trial.
More Read
This reference to Kasab’s case is noteworthy because Kasab’s trial, which included multiple hearings, cross-examinations, and appeals, was conducted under intense public scrutiny. His fair trial, despite being accused of horrific crimes, was an example of how the legal system upholds the rights of the accused, even in the most difficult circumstances. By referencing Kasab’s trial, Justice Oka emphasised the judiciary’s commitment to fairness, which must extend to all, irrespective of the crime, and underscored the need for flexibility in ensuring justice in high-security cases like that of Malik.
Solicitor General Mehta, however, countered that such cases could not always adhere strictly to procedural norms and argued for more flexibility in managing high-profile terrorism cases.
The Proposal for a Jail-Based Court Setup
In response to the CBI’s concerns and the complexity of Malik’s case, the bench suggested an innovative solution: setting up a court within the Tihar Jail itself to conduct the trial. The court proposed that a judge could be stationed in the jail, where the trial could be carried out with appropriate security measures in place. This would allow Malik to be present for the proceedings while addressing concerns about his safety and the potential for disruption in Jammu and Kashmir.
The bench also asked the government to provide a detailed plan, including the number of witnesses involved and the necessary security arrangements, to ensure that the trial could be conducted without incident. The matter was adjourned for further hearing next Thursday, giving time for the government to submit its proposal and for all parties to consider the logistical and security implications.
The Supreme Court’s approach to Yasin Malik’s trial highlights the complexities involved in dealing with high-profile terrorism cases while balancing the constitutional rights of the accused. By referencing the precedent set by Ajmal Kasab’s trial, the court has reaffirmed its commitment to ensuring that justice is served in a fair and transparent manner, even when the security challenges are significant. The proposal for a jail-based trial reflects a pragmatic attempt to address both security concerns and the need for a fair legal process, ensuring that the legal system continues to function effectively, even under extraordinary circumstances.
