‘Fair trial is crucial’: SC suggests court in jail for Yasin Malik’s trial

The Supreme Court on Thursday proposed setting up a makeshift courtroom within Delhi’s Tihar Jail to facilitate the physical cross-examination of terror convict Yasin Malik in two high-profile cases.

Underlining the fundamental right to a fair trial, the Supreme Court on Thursday proposed setting up a makeshift courtroom within Delhi’s Tihar Jail to facilitate the physical cross-examination of terror convict Yasin Malik in two high-profile cases of kidnapping and murder.

Yasin Malik, the Jammu court ruled, needed to be present in person for the cross-examination of witnesses in two cases –– the 1989 kidnapping of Rubaiya Sayeed, daughter of then Union minister and later Jammu & Kashmir chief minister Mufti Muhammad Sayeed; and the killing of four Indian Air Force personnel. (ANI)

A bench of justices Abhay S Oka and AG Masih emphasised its duty to ensure that justice is not only done but also seen to be done, even in cases involving grave allegations.

“In our country, a fair trial was given even to Ajmal Kasab,” observed the bench as it heard an appeal filed by the Central Bureau of Investigation (CBI) against a Jammu court order mandating Malik’s physical presence for trial proceedings.

Malik, the Jammu court ruled, needed to be present in person for the cross-examination of witnesses in two cases –– the 1989 kidnapping of Rubaiya Sayeed, daughter of then Union minister and later Jammu & Kashmir chief minister Mufti Muhammad Sayeed; and the killing of four Indian Air Force personnel.

The CBI, however, argued against Malik’s physical transfer from Tihar Jail to Jammu, citing significant security risks. Representing the agency, solicitor general (SG) Tushar Mehta stressed the exceptional challenges posed by Malik’s history and activities.

“He is not just another terrorist. He frequently travelled to Pakistan and shared the dais with terrorist Hafiz Saeed. The government cannot approach such cases through routine measures,” asserted Mehta, adding that trials in jail premises have been conducted before, such as in Gujarat.

Responding to the CBI’s concerns, the bench suggested that a courtroom could be temporarily set up within the jail to balance security considerations with the need for cross-examination. “A courtroom can be set up in jail, and it can be done there. Just find out how many witnesses are involved. Even witnesses will need security,” it remarked.

The bench asked CBI to consider alternatives, including shifting the trial to Delhi if Malik insisted on being physically present. “But how can cross-examination be done over video conferencing?” questioned the court, highlighting the limitations of virtual proceedings in ensuring the authenticity of witness testimonies and the accused’s ability to defend themselves.

The Supreme Court allowed CBI to implead other accused in the case as respondents and set the next hearing for November 28. The matter has remained contentious since April last year when the top court stayed the Jammu court’s order for Malik’s physical production.

Malik’s physical presence in court has sparked controversy on multiple occasions. In July 2023, he attended a Supreme Court hearing after notifying jail authorities of his intent, prompting a strongly worded letter from SG Mehta to the then Union home secretary, Ajay Bhalla, calling it a grave security lapse. Malik also moved the Delhi high court earlier this year, challenging the invocation of Section 268 of the Code of Criminal Procedure (CrPC), which restricts his removal from jail. He contended that this provision was being misused to prevent his physical presence in court proceedings.

As the Supreme Court deliberates on the logistics of ensuring a fair trial for Malik, the proposed makeshift courtroom within Tihar Jail reflects a balancing act between safeguarding constitutional rights and addressing national security concerns.

The top court’s reference to Kasab is relevant to highlight the principle that even individuals accused of heinous crimes are entitled to justice under the rule of law.

Kasab, a Pakistani terrorist captured on multiple cameras carrying out the 26/11 Mumbai attacks, was provided adequate legal representation throughout his trial. Despite the overwhelming evidence of his involvement, senior advocate Raju Ramachandran represented him as the amicus curiae in the Supreme Court, which upheld his conviction and death sentence in August 2012. Kasab was executed by hanging in November 2012.