Can India’s new law finally bring 26/11 masterminds to trial?

The Mumbai Police and the Ministry of House Affairs have initiated authorized proceedings to conduct a proper legal trial in absentia towards six Pakistani nationals accused of orchestrating the November 26, 2008 Mumbai terror attacks.

This marks the primary time that the trial-in-absentia provisions below Part 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 — which changed the legacy Code of Legal Process (CrPC) on July 1, 2024 — have been invoked in a significant worldwide terrorism case.

On the centre of this landmark judicial push is Hafiz Muhammad Saeed, the founder and chief of the banned terror outfit Lashkar-e-Taiba (LeT) and its political arm Jamat-ud-Dawa (JuD).

Alongside Saeed, the prosecution is transferring towards LeT supreme operational commander Zaki-ur-Rehman Lakhvi, key handler Sajid Mir, Karachi management room managers Abu Alqama and Asim alias Abu Qahafa, and former Pakistani army officer Main Abdur Rehman Pasha.

The authorized course of was formally set into movement following an official communication from Mumbai Police Commissioner Deven Bharti to Particular Public Prosecutor Ujjwal Nikam, urging the prosecution to utilise the newly enacted legal code to stop foreign-sheltered absconders from indefinitely stalling the wheels of justice.

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Appearing on the prosecution’s utility, Particular Choose SR Navander issued statutory proclamations towards the six accused, setting an August 18 deadline for his or her obligatory look earlier than the courtroom.

With the deadline passing with out their look, the courtroom is now empowered to proceed with the formal recording of proof, examination of witnesses, and the eventual rendering of a binding verdict towards the masterminds.

How does trial in absentia in India work?

Below the British-era Code of Legal Process, 1973, Indian legal regulation operated strictly on the doctrine of bodily presence.

Barring slim exceptions below Part 299 of the outdated CrPC — which merely permitted courts to document witness statements for future use if an absconding accused was finally arrested — an Indian courtroom might neither conclude a trial nor pronounce a proper judgement of conviction or acquittal within the absence of the defendant.

This authorized limitation created a structural bottleneck in cross-border terror instances, permitting conspirators residing in non-cooperative international jurisdictions to evade authorized accountability indefinitely.

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, particularly Part 356, basically overhauled this panorama by codifying the process for trials in absentia.

Below this provision, when a person accused of a severe crime intentionally evades trial and stays past the speedy attain of Indian regulation enforcement, the judiciary is authorised to proceed with the complete trial and ship a remaining judgement.

To stability nationwide safety imperatives with the constitutional ensures of a good trial below Article 21, Part 356 incorporates strict statutory circumstances that should be fulfilled earlier than a trial in absentia can begin:

As soon as these circumstances are happy, the trial proceeds below normal judicial guidelines.

If convicted, the sentence stays completely enforceable, that means the offender could be instantly arrested and incarcerated with out re-trying the case ought to they ever enter Indian jurisdiction or be extradited.

Who’re the six accused?

The six Pakistani nationals focused on this continuing have been unique key figures within the 11,200-page cost sheet filed by the Mumbai Police Crime Department in 2009.

Every performed an important function within the planning, funding, operational coaching, or real-time execution of the assault that claimed 166 lives between November 26 and 29, 2008.

Hafiz Muhammad Saeed

Founder and chief of the proscribed terror group Lashkar-e-Taiba and its entrance organisation Jamat-ud-Dawa, Saeed resides in Lahore, Punjab province, Pakistan.

The Indian indictment identifies Saeed as the first ideological architect behind the 26/11 conspiracy.

Proof submitted by investigators exhibits that Saeed personally performed ideological indoctrination periods on the LeT’s Bait-ul-Mujahideen camp in Muzaffarabad and the Manshera coaching centre, the place he personally chosen the 10-man hit squad that launched the amphibious assault on Mumbai.

Zaki-ur-Rehman Lakhvi

Serving because the supreme operational commander of Lashkar-e-Taiba, Lakhvi operates out of Markaz LeT on the Bait-ul-Mujahideen Camp in Muzaffarabad.

Lakhvi oversaw the rigorous army coaching routine — generally known as Daura-e-Khas — which instructed the attackers in city warfare, maritime navigation, and the dealing with of superior explosives and firearms.

Lakhvi personally inspected the tactical gear of the strike squad in Karachi earlier than supervising their launch aboard the vessel Al-Husseini.

Sajid Mir

A senior operations supervisor inside LeT’s international operations wing, Sajid Mir acted because the direct tactical handler for the ten attackers.

Working out of a high-tech management room in Malir, Karachi, Mir was in steady, real-time contact with the terrorists through satellite tv for pc telephones and Voice over Web Protocol (VoIP) channels throughout the 60-hour siege.

Intercepted audio logs reveal Mir giving direct directions to the gunmen on the Taj Mahal Palace Lodge, the Oberoi Trident, and Nariman Home, together with express orders to execute hostages.

Abu Alqama

A senior communications coordinator for LeT, Abu Alqama labored alongside Lakhvi and Sajid Mir contained in the Karachi management room.

Alqama was chargeable for organising the complicated digital telephony infrastructure that routed calls between the management room in Pakistan and the terrorists’ handheld gadgets in Mumbai, designed to obscure the bodily location of the handlers.

Asim alias Abu Qahafa

Serving as a specialised communications teacher and tactical coach for LeT, Abu Qahafa skilled the ten gunmen in working satellite tv for pc navigation tools, maritime GPS gadgets, and satellite tv for pc telephones.

Through the days of the siege, Qahafa was bodily current contained in the Malir management room in Karachi, serving to information the tactical actions of the attackers inside Chhatrapati Shivaji Maharaj Terminus (CSMT), Cama Hospital, and Cafe Leopold.

Abdur Rehman Pasha

A former officer within the Pakistan Military who joined the LeT community, Pasha served because the essential operational bridge between state army actors and the non-state terrorist organisation.

Pasha assisted in conducting preliminary reconnaissance, facilitating entry to military-grade explosive compounds, and offering tactical recommendation on counter-interception methods.

How has India constructed a case towards the 26/11 masterminds?

Particular Public Prosecutor Ujjwal Nikam confirmed that the trial in absentia will probably be constructed upon an intensive evidentiary basis meticulously assembled by the Crime Department and the Nationwide Investigation Company (NIA) over almost 20 years.

Evidentiary structure of the prosecution case:

Judicial confession of Ajmal Kasab

Eyewitness testimony of Sayed Zabiuddin Ansari (Abu Jundal)

Technical intercepts & forensic proof

Video deposition of David Coleman Headley

The first anchor stays the judicial confession of Mohammed Ajmal Amir Kasab, the only surviving gunman who was captured alive at Girgaon Chowpatty on the evening of November 26, 2008.

Recorded below Part 164 of the CrPC earlier than a Mumbai Justice of the Peace, Kasab’s confession offered a firsthand account of the conspiratorial chain.

Kasab detailed how Hafiz Saeed personally addressed the recruits, highlighting the need of waging a Fedayeen assault on India’s monetary capital, and the way Lakhvi personally managed their tactical dispatch from Karachi.

Additional eyewitness testimony originates from Sayed Zabiuddin Ansari, alias Abu Jundal, an Indian-born LeT operative who was deported from Saudi Arabia to India in June 2012.

Ansari testified earlier than the Particular Courtroom that he was bodily current contained in the Karachi management room all through the siege. Ansari confirmed that Lakhvi, Sajid Mir, Abu Qahafa, and Abu Alqama have been sitting collectively, watching reside Indian tv information broadcasts of the assault whereas concurrently issuing tactical instructions to the attackers.

Ansari additionally disclosed that he was instructed by Lakhvi to show native Mumbai slang and Hindi to the ten attackers throughout a 10-day orientation session to assist them manipulate media shops throughout the assault.

Reinforcing these testimonial pillars is an enormous repository of technical proof. Indian intelligence companies, working alongside international regulation enforcement, intercepted hours of real-time voice transmissions between the Karachi management room and the assault websites.

Acoustic biometric voice-matching performed on the intercepted audio confirmed the precise voice profiles of Sajid Mir, Zaki-ur-Rehman Lakhvi, and Abu Qahafa.

Moreover, the judicial document accommodates the sworn video deposition of American co-conspirator David Coleman Headley (born Daood Sayed Gilani).

Deposing earlier than the Mumbai Particular Courtroom from a US federal jail in February 2016, Headley detailed how he carried out 9 separate reconnaissance journeys to Mumbai on direct orders from Sajid Mir and Main Pasha, photographing and mapping the precise entry factors utilised by the assault workforce.

The place does Pakistan stand on this?

The choice by Mumbai authorities to invoke Part 356 BNSS is a direct technique to bypass Pakistan’s historic refusal to extradite terror masterminds or conduct real home prosecutions.

For years, Islamabad has maintained a diplomatic defence earlier than worldwide monitoring companies — such because the Monetary Motion Job Drive (FATF) and the United Nations Safety Council (UNSC) 1267 Sanctions Committee — by asserting that Hafiz Saeed and Zaki-ur-Rehman Lakhvi are serving jail phrases.

Between 2020 and 2022, Pakistani Anti-Terrorism Courts in Lahore sentenced Hafiz Saeed to a number of jail phrases totalling over three a long time.

Nevertheless, these convictions have been strictly restricted to home terror financing below Pakistan’s Anti-Terrorism Act (ATA), fully omitting expenses associated to homicide, waging struggle, or worldwide conspiracy regarding the 26/11 assaults.

Equally, Lakhvi was granted bail by an Islamabad courtroom in 2015 relating to Pakistan’s inside 26/11 trial — a continuing that has remained successfully frozen for over 15 years as a consequence of steady procedural adjournments and refusal to simply accept Indian witness proof.

Sajid Mir, whose very existence was denied by Pakistani authorities for over a decade, was quietly sentenced to a jail time period in 2022 solely when Pakistan confronted the speedy menace of blacklisting by the FATF.

What occurs after they’re convicted?

By finishing the trial in absentia in Mumbai, the Indian judicial system creates a definite authorized actuality.

As soon as formal convictions are pronounced:

Transition in authorized standing: The six people will formally transition from “under-investigation fugitives” to convicted terror felons below Indian legal regulation.

Modification of Interpol notices: Interpol Pink Nook notices issued towards Saeed, Lakhvi, Mir, and Pasha — and Blue Nook Notices at present lively towards Abu Qahafa and Abu Alqama — will probably be up to date to replicate standing sentences of life imprisonment or the loss of life penalty.

Binding worldwide obligations: Below UN Safety Council Decision 1373 and international anti-terrorism authorized conventions, Pakistan’s obligation to extradite or give up convicted terrorists turns into binding, stripping away procedural arguments relating to sub-judice standing or incomplete investigations.

What does this imply for India’s struggle towards cross-border terrorism?

The invocation of Part 356 within the 26/11 Mumbai terror case is a part of a broader, systemic utility of the BNSS throughout India’s counter-terrorism authorized framework.

Earlier in July this yr, a Particular Nationwide Investigation Company (NIA) Courtroom in Jammu issued non-bailable warrants against Hafiz Saeed in connection with the Pahalgam terror attack, initiating the trial-in-absentia protocol below Part 356 BNSS.

In that case, the NIA filed a supplementary chargesheet naming Saeed and his proxy outfit, The Resistance Entrance (TRF), for orchestrating a terror strike within the Baisaran Valley that resulted in 26 fatalities.

The authorized precedent set by the Mumbai Particular Courtroom establishes an operational blueprint for the NIA, the Central Bureau of Investigation (CBI), and state counter-terrorism squads.

Indian companies are at present getting ready comparable purposes below Part 356 BNSS for different long-standing fugitives sheltered in international jurisdictions, together with:

By modernising legal process to allow full judicial trials of absconding offenders, India’s statutory framework below BNSS Part 356 ensures that cross-border fugitives can not depend on jurisdictional evasion to stop the ultimate judicial willpower of their guilt.

The proceedings earlier than Particular Choose SR Navander in Mumbai signify a giant milestone in guaranteeing that the evidentiary document of the 26/11 assaults culminates in a binding courtroom verdict.

In the meantime, Tahawwur Rana was extradited by the USA and arrived in New Delhi final yr, after the US Supreme Courtroom rejected his remaining appeals. He was taken into custody by the NIA to face trial.

Rana, a Pakistani-origin Canadian businessman based mostly in Chicago, didn’t participate instantly within the 26/11 Mumbai assaults, however acted as a key logistical co-conspirator working alongside his former schoolmate, David Coleman Headley.

With inputs from companies