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Grants Time Till in 26/11 Hafiz Saeed In Absentia Trial
Nearly 18 years after the coordinated 26/11 Mumbai terror attacks claimed 166 lives, the Indian legal machinery has taken a decisive step toward holding the masterminds accountable. On Friday, the urged the to prosecute six absconding Pakistani nationals—including founder Hafiz Saeed and operations chief Zaki-ur-Rehman Lakhvi—in absentia under . Sessions Judge Satyanarayan Navandar granted the State until to serve formal legal notices through , marking the beginning of what Special Public Prosecutor termed a "historic" proceeding.
Background: The Unfinished Chapter of 26/11
The November 2008 attacks remain one of the deadliest terrorist assaults on Indian soil. Ten armed terrorists entered Mumbai via the Arabian Sea and struck iconic locations—including the Taj Mahal Palace Hotel, Oberoi Trident, Chhatrapati Shivaji Terminus, Leopold Cafe, and Nariman House—over four harrowing days. While Pakistani gunman Ajmal Kasab was captured alive, tried, convicted, and executed, the alleged handlers and planners based in Pakistan have evaded Indian justice for years. Previous attempts to secure their or prosecution have stalled due to diplomatic tensions and lack of bilateral cooperation. Now, using the newly codified BNSS, India is proceeding unilaterally.
Key Developments: Proclamation Orders and Notices
During Friday's hearing, Special Public Prosecutor
—a Rajya Sabha MP—submitted a formal report to the court confirming that
under Section 356 BNSS had already been affixed at prominent public places across Mumbai, including the
and Sessions Court.
"We have affixed the
in several public places across Mumbai including
and Sessions Court,"
Nikam explained. The next step involves serving these orders through
to the six accused residing in Pakistan: Hafiz Saeed, Zaki-ur-Rehman Lakhvi, Sajid Mir, Abu Alqama, Asim (alias Abu Qahafa), and Major Abdur Rehman Pasha. The State has also written to the
to facilitate the
channel.
"We are yet to hear from the Ministry on this but once they respond, the proclamation order will be served through
,"
Nikam said.
Judge Navandar granted time until , after which the prosecution must update the court on . According to the procedure outlined by Nikam, once the notice is served, the court will wait an additional 90 days. If the accused do not respond, legal aid lawyers will be appointed to represent them, and the will officially commence.
Legal Analysis: Section 356 BNSS and the Mechanics of
The shift from the older to the BNSS has streamlined the in absentia process. Section 356 BNSS empowers a sessions court to proceed against an absconding accused if, after due service of proclamation and waiting the prescribed period, the accused fails to appear. The provision explicitly allows the trial to continue with the appointment of counsel for the absent defendant, ensuring that the is not extinguished even when the accused refuses to submit to jurisdiction.
Crucially, the State's application primarily relies on the testimony of Ajmal Kasab—the lone terrorist captured alive—and David Coleman Headley, a Pakistani-American former operative who turned and testified extensively about the conspiracy. Both witnesses provided detailed accounts of the roles played by Saeed, Lakhvi, and the other fugitives in planning and funding the attack. Nikam noted that this evidence forms the bedrock of the case, and its admissibility in an in absentia trial will be tested under Indian evidentiary law. Since the accused are not present to cross-examine, the court will have to assess the credibility of these statements against the backdrop of international terrorist networks.
The use of notices adds a layer of international legal cooperation, though Pakistan's non-cooperation remains a hurdle. Even if the notices are served, actual is unlikely. However, a conviction in absentia carries symbolic and practical weight: it may trigger Red Corner Notices, bilateral sanctions, or future detention if any of the accused travel outside Pakistan.
Impact on Legal Practice and Counter-Terrorism
This trial marks a significant evolution in India's counter-terrorism jurisprudence. For years, the inability to produce foreign-based accused stymied justice. The proactive use of in absentia provisions under BNSS signals a shift from a purely -centric approach to a more assertive, evidence-based judicial process. Legal professionals will closely watch how the court handles the appointment of , the evaluation of without , and the ultimate sentencing—which, under Indian law, can include life imprisonment or even the death penalty, to be executed only if the accused is brought to India.
The case also highlights the intersection of domestic criminal procedure and international law. While is permissible under Indian law, some jurisdictions treat it as a violation of . Nonetheless, the has upheld such proceedings in cases where the accused deliberately evades process. The 26/11 in absentia trial may set a precedent for other pending cases involving fugitives, such as those related to the 1993 Mumbai bomb blasts or the Pathankot attack.
From a policy perspective, the move reinforces India's long-standing demand that Pakistan take action against terrorists sheltered on its soil. The conviction—if secured—would provide a legal basis for further diplomatic and security measures, even in the absence of physical custody.
What Happens Next?
The court will reconvene on to review progress on the service. If the Ministry of Home Affairs confirms that the notices have been transmitted, a further 90-day window will begin. During that period, the accused may choose to appear (which is unlikely) or remain silent. The appointment of will then set the stage for a full . Given the extensive evidence already gathered, the prosecution appears confident. As Nikam stated, the court has granted time, and the machinery is now in motion.
For the legal community, this case is a landmark in the fight against impunity for international terrorism. It demonstrates how domestic courts can adapt procedural tools to overcome jurisdictional barriers, ensuring that justice—though delayed—is not denied.
Conclusion
The in absentia trial of Hafiz Saeed and five other Pakistani nationals represents a bold judicial step nearly two decades in the making. By invoking Section 356 BNSS and leveraging , the is charting a path that balances procedural fairness with the imperative to hold terrorists accountable. While the actual conviction may not immediately bring the accused to Indian soil, it will place them in the unique category of ""—a stain that may one day lead to their capture. For now, the Indian legal system has declared that no distance, no diplomatic wall, and no passage of time can shield the masterminds of 26/11 from the reach of the law.
