SC agrees to examine CBI plea to transfer Yasin Malik’s trial from Jammu

The Supreme Court on Thursday agreed to examine the Central Bureau of Investigation’s (CBI) plea to transfer the trial of Yasin Malik, a terror convict and former Jammu & Kashmir Liberation Front (JKLF) chief, from a Jammu court to Delhi. The agency proposed the trial be conducted via video conferencing in a makeshift courtroom within Delhi’s Tihar Jail, where Malik is lodged.
A bench of justices Abhay S Oka and AG Masih issued notices to Malik and his co-accused in the cases, seeking their responses by December 18. The move comes as the court grapples with balancing the imperatives of national security and the constitutional mandate for a fair trial.
Solicitor general Tushar Mehta and advocate Rajat Nair, representing CBI, brought on record the agency’s application in the light of a Jammu court order mandating Malik’s physical presence for trial proceedings. Malik, the Jammu court directed, needed to be present in person for the cross-examination of witnesses in the 1989 kidnapping of Rubaiya Sayeed, daughter of the Union minister and later Jammu & Kashmir chief minister Mufti Muhammad Sayeed, and the killing of four Indian Air Force personnel.
The CBI’s application cited substantial risks in transporting Malik to Jammu for trial proceedings, underlining his connections with international terror networks and describing him as “a national threat who headed a terror group and was instrumental in initiating terror activities.”
The plea highlighted that Malik had shared stages with figures such as Hafiz Saeed, a designated global terrorist, during his visits to Pakistan. The agency emphasised that Malik remains a “national threat”, and that his presence in Jammu could endanger public safety and complicate security arrangements.
The agency’s application condemned Malik’s refusal to engage legal representation, alleging that this was a deliberate strategy to compel his physical transfer under the guise of attending court proceedings.
“The Union of India has credible information about certain facts which makes it impossible to take Yasin Malik to J&K. It clearly appears that Yasin Malik is fully aware that he would never be taken to J&K except under the pretext of attending the court proceedings personally. It is precisely for this reason that he is refusing to engage the services of any lawyer though he and his organisation have the services of many lawyers in many similar cases in J&K,” said the plea.
The CBI pointed out the advanced facilities available within Tihar Jail, including infrastructure for video conferencing and courtrooms designed for high-security trials. It argued that these facilities could effectively address concerns raised by the Jammu court about internet connectivity issues during virtual hearings.
“The present application is being filed to bring on record certain facts with respect to the stage of trial in the present cases, antecedents of Respondent no 1 [Malik] and the facilities in Central Jail, Tihar for conducting court proceedings in the jail premises and to seek appropriate directions from this Hon’ble Court to the effect that the trial in abovesaid two cases be shifted in New Delhi, to be conducted in Central Jail, Tihar, where respondent no 1 is presently lodged,” said the plea.
The Supreme Court on November 21 acknowledged the gravity of the cases involving Malik when it proposed setting up a makeshift courtroom within Tihar Jail to facilitate the trial proceedings in the two cases.
On the day, the bench also 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,” said the bench during the previous proceedings. The 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 in November 2012.
Malik’s physical presence at court proceedings has sparked debates. In July 2023, his unsanctioned appearance at a Supreme Court hearing led to criticism from the Solicitor General, who termed it a “grave security lapse.” Malik has challenged restrictions under Section 268 of the Code of Criminal Procedure, which limits his movement outside Tihar Jail.
A Delhi court sentenced Malik to life imprisonment in May 2022 in a terror funding case. The National Investigation Agency subsequently moved the Delhi high court demanding a death sentence. This appeal is yet to be decided.