National Security vs Disclosure: A Delicate Balance in the 26/11 Trial

The Bombay High Court overturned a controversial 2018 directive that had frozen the trial of Zabiuddin Ansari (alias “Abu Jundal”) in the deadly 26/11 attacks case, clearing the way for proceedings to finally resume after seven years.

When the trial was stalled in 2018 by a trial court order directing the handing over of so-called “sensitive” documents to the accused, the tension between an individual’s fair-trial rights and the imperatives of national security came sharply into focus.

The defence had argued that Ansari needed travel, immigration and arrest-related documents (including airline passenger lists and arrest records) to prepare his case, specifically, his claim that he was arrested in Saudi Arabia rather than at Delhi airport.

The trial court’s 2018 directive triggered a stay because state agencies contended the documents were privileged, concerned matters of sovereignty, foreign relations and “classified” security-material.

Justice Ladda underlined the importance of timely trial and said, “The trial has remained stayed since 2018 due to the impugned order. In serious offences, a timely trial is essential to ensure justice and accountability,” he said.

In its recent ruling, the Bombay High Court found the trial court order “wholly unsustainable” and “misdirected” under Section 91 of the Criminal Procedure Code (CrPC) quashing it and allowing the resumption of the trial.

This marks a key moment for how the judiciary interprets the balance between disclosure obligations in criminal trials and the state’s duty to protect national security, diplomacy and border-control interests.

Delay in justice and its consequences

On one hand, the accused has a right to adequate defence, which includes access to relevant documents. On the other, the government argues that certain documents (immigration logs, diplomatic communications, airline-passenger manifests) implicate national security, foreign relations and operational confidentiality. The state claimed the trial court order would effect a “roving and fishing enquiry” and compromise privilege under the Evidence Act and state sovereignty.

The High Court emphasised that Section 91 cannot be used to force production of every document merely because the defence demands it. The power has limits, particularly when disclosure impacts “public interest, national security and foreign relations”.

Because the order remained contested for years, the trial was stalled since 2018. That delay itself became a justice-issue compounded by the complexity of disclosure vs secrecy. The High Court noted that in serious offences, timely trial is essential to ensure accountability.