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Synopsis

The Delhi High Court on Monday issued notice to Jammu Kashmir Liberation Front (JKLF) terrorist Yasin Malik through the Jail Superintendent of Tihar Jail on a plea filed by the National Investigation Agency (NIA) seeking the death penalty for him. Malik was sentenced to life imprisonment in connection with a terror funding case.

A division bench of Justice Siddharth Mridul and Justice Talwant Singh directed the Jail Superintendent of Tihar Jail, "Let Warrants be issued for the production of Yasin Malik on the next date of hearing. Let him be produced before the court physically". 

Justice Mridul also said, "Please show us the recommendation of the Law Commission as weel. Please enlighten us on it as well".

Accordingly, the court posted the matter for further consideration on August 9, 2023.

During the hearing, Solicitor General of India (SGI) Tushar Mehta along with Special Public Prosecutor Ashay Malik appeared for the NIA.

The NIA in its appeal stated that the NIA court while not applying the “Theory of Deterrence” in the right spirit, held that the present case does not fall within the category of the “rarest of the rare cases” and sentenced the JKLF Terrorist to life imprisonment instead of sentencing him for the death penalty.

“The appellant NIA is constrained to file the present appeal challenging the legality of the sentence imposed by the Special Court and praying for enhancement of the same to capital punishment… it has now been proven beyond reasonable doubt that the respondent accused over decades has been indulging and spearheading terrorist activities in the valley and with the help of dreaded foreign terrorist organizations, having interest inimical to India, has been masterminding, planning, engineering and executing armed rebellion in the valley in an attempt to usurp the sovereignty and integrity of a part of India”, the plea stated.

The plea also stated that it has been proven beyond reasonable doubt that the offences committed by Malik were ex-facie acts of “external aggression”, brazenly planned and executed by “acts of waging war against the nation" whereby “internal disturbance” was created through raising and using trained armed militia within the state and by helping trained terrorist, raised in enemy states, to infiltrate the borders of India to participate and catalyze such internal disturbances.

It stated that the NIA Court’s ground that the present case did not fall within the category of the rarest of the rare cases was ex-facie legally flawed and completely unsustainable. It also stated that if such dreaded terrorists are not given capital punishment only on the ground that they have pleaded guilty, then the same will result in complete erosion of the sentencing policy of the country.

“Not giving capital punishment to such dreaded terrorists will result in miscarriage of justice, as, an act of terrorism is not a crime against society but it’s a crime against the entire nation; in other words, it’s an act of external aggression, an act of war and an affront to the sovereignty of nation”, the plea stated.

Notably, the JKLF Terrorist was convicted on May 19, 2022, in connection with Jammu & Kashmir terror funding and secessionist activities case. The sentence was pronounced on May 25, 2022. NIA Judge Praveen Singh sentenced Mailk to life imprisonment and imposed a fine of Rs. 10 lakhs.

While sentencing Malik to life imprisonment the court had said, “In my opinion, there was no reformation of this convict. I may be correct that the convict may have given up the gun in the year 1994, but he had never expressed any regret from the violence he had committed prior to the year 1994”.

“It is to be noticed that, when he claimed to have given up the path of violence after the year 1994, the government of India took it at its face value and gave him an opportunity to reform and in good faith, tried to engage in a meaningful dialogue with him and as admitted by him, gave him every platform to express his opinion”, the judge had said.

“The crimes for which convict has been convicted are of a serious nature. These crimes were intended to strike at the heart of the idea of India and intended to forcefully accede J&K from UOI”, the judge had further said.

The judge has also added, “The crime becomes more serious as it was committed with the assistance of foreign powers and designated terrorists. The seriousness of the crime is further increased by the fact that it was committed behind the smoke screen of an alleged peaceful political movement”.

On May 10, the flag bearer of JKLF pleaded guilty before the NIA court to all charges under the Unlawful Activities (Prevention) Act.

Background:

On May 30, 2017, a Delhi court framed charges against 12 accused persons, including two absconding accused Hafiz Mohammad Saeed (head of LeT) and Mohd. Yusuf Shah @ Salahuddin (head of Hizb-ul-Mujahideen), including Yasin Malik under Unlawful Activities Prevention Act, 1967 (UAPA) in connection with the Jammu & Kashmir terror funding and secessionist activities case.

It was also alleged that funds for the operation were collected, domestically and abroad, through various illegal channels including Hawala for funding separatist and terrorist activities in J&K. The accused had entered into a larger conspiracy for causing disruption in Kashmir valley by stone pelting, burning schools and buildings, damage to public property and waging war against India. 

In 2016, Malik along with other Hurriyat leaders had formed a self-styled group called 'Joint Resistance Leadership', whereby they started issuing directions to the masses to hold protests, demonstrations, hartals, shutdowns,  road-blocks and other disruptive activities which would push the entire society into chaos and lawlessness.

Malik was also involved in raising funds from LOC traders, and various entities based abroad and distributing those funds among militants and stone pelters for funding stone-pelting and demonstrations.

Ministry of Home Affairs vide order dated May 30, 2017, had then directed the NIA to register a case, which was registered under Sections 120B, 121, 121A of the Indian Penal Code,1860 and Sections 13, 15, 17, 18, 20, 38 and 39 of UAPA, 1967.

Case Title: State (National Investigation Agency) v. Mohd. Yasin Malik