Last week, the Supreme Court (SC) stayed the precedential effect of a carefully reasoned Bombay High Court (HC) verdict that acquitted 12 persons accused in the 2006 Mumbai train bombings. The stay, without giving substantive reasons, is worrying.
The case arose out of one of the most horrific terror attacks India has seen. On July 11, 2006, a series of seven coordinated bomb blasts ripped through compartments of Mumbai’s trains, killing 187 people and injuring over 800. The Anti-Terrorism Squad of the Maharashtra Police took over the investigation, resulting in the arrest of 13 persons. The accused were charged under various sections of the Indian Penal Code, the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), the Unlawful Activities (Prevention) Act, 1967 (UAPA), as well as the Explosive Substances Act, 1908. In 2015, a special court convicted 12 of them, sentencing five to death and the rest to life imprisonment. Its judgment relied heavily on the confessional statements made by some of the accused under Section 18 of MCOCA, declaring them “voluntary and truthful” despite the defence arguing that they were the result of torture and emphasising that they were subsequently retracted.
Crucially, the HC declared that the invocation of the stringent MCOCA was improper. When prior approval for invoking that Act was granted, information about the existence of the legal ingredients and conditions was clearly not furnished before the approving authority. Also, the “prior” approval was found to be without application of mind. Another key ingredient for the invocation of MCOCA is that there must be a “continuing unlawful activity”, as defined in that Act, and that condition was not fulfilled. The HC also held that the confessions relied on by the prosecution were inadmissible due to evidence of brutal torture, lack of voluntariness, and procedural violations under MCOCA, including defective “prior” approvals and identical statements. It noted medical evidence of injuries, retractions made immediately upon judicial custody, and the absence of critical details like the bombs’ chemistry, all of which undermined the credibility of the alleged confessions. The court also noted the failure of police to prove voluntariness through oral evidence and the striking fact that the accused had remained silent for months in custody. They allegedly confessed only after MCOCA was invoked: A pattern that undermined the genuineness of the statements.
The HC ultimately acquitted all 12 of the accused, concluding that the prosecution “utterly failed to establish the offence beyond a reasonable doubt against the accused on each count”. The acquittal alerts us to the disturbing fact that the actual masterminds of the 2006 Mumbai train blasts have remained scot-free for nearly two decades. It is particularly pertinent to pay heed to a preliminary paragraph in the HC’s judgment, where it emphasises the dangers of “creating a false appearance of having solved a case by presenting that the accused have been brought to justice”. This, the HC rightly notes, “undermines public trust and falsely reassures society, while in reality, the true threat remains at large”.
The stay order by the SC is jarring for several reasons. The first is the summary manner in which the Court, “taking note of the submissions made by the learned Solicitor General on the question of law”, said it was “inclined to hold that the impugned judgment shall not be treated as a precedent in any other pending proceedings”. Based on this, the SC ordered “there shall be a stay on the operation of the impugned judgment” to that extent. For the Court to “hold” something, normally, both sides would be heard, and the Court would provide a reason. Instead, the stay order appears to be solely based on the assertion of the Solicitor General. There is no mention of any specific questions of law, or even the potential impact of the judgment as precedent. The SC order does not even refer to the tests it typically applies while determining whether a stay is to be granted. It makes no mention of whether the state has made out a prima facie case, whether the balance of convenience lies on its side, or how irreparable damage might be caused if the HC judgment is not stayed.
Second, the stay order appears to undermine the HC’s authority. The HC is not only a constitutional court, but also the mandatory reference court for death sentences, and the first appellate court meant to decide authoritatively on both facts and law. To summarily strip a judgment from such a body of its precedential value is unfair and demoralising.
Third, and perhaps most important, is the signal the order sends out. This must be viewed in a broader context concerning cases involving terror offences, where there are often myriad pressures on the judiciary to secure a conviction to placate public outcry. In these cases, it takes a certain degree of judicial courage and integrity to focus on the particular questions of fact and law that arise in a case without being swayed by general public discourse. The HC’s judgment was a bold affirmation of the principle that the judicial task is to dispassionately weigh evidence and uphold the law, however horrifying the crime. The judgment acknowledged the tragedy of the lives lost and harm caused, but refused to sacrifice the lives of innocent persons for the sake of a “false appearance” of closure. Viewed in this broader context, the stay order sends a disconcerting message that even the most thorough and well-reasoned acquittals in these kinds of sensitive cases may be suspended on the basis of assertions by the state.
The writer is a senior advocate, Supreme Court of India
