New Delhi: Kashmiri separatist leader Yasin Malik has not only failed in reforming himself, but has moved up “several steps in hierarchy” to become even more dangerous, given the influence he wields on “young minds of the nation”.
This is how the National Investigation Agency (NIA) described the leader of the Jammu Kashmir Liberation Front (JKLF) in an appeal filed in the Delhi High Court demanding the death sentence for Malik, who is currently serving a life term in jail after his conviction on charges of terrorism.
The agency, in its plea, questioned the punishment given to Malik — a “hardened terrorist” — by a trial court in Delhi last year.
The NIA submitted to the high court that showing Malik “leniency” would not only be a “mockery” of the “Indian justice system”, but would cause grave injustice to the families of the victims and security forces who either died or were severely injured during conflicts in the (Kashmir) Valley planned and executed at Malik’s instance.
The NIA further cited two particular crimes to argue that Malik should be awarded the death penalty — the murder of four armed forces personnel in Jammu and Kashmir, and the abduction of Rubaiya Sayeed, the daughter of then Union home minister Mufti Mohammad Sayeed, in 1989.
These two actions, the NIA argued in its appeal, were carried out to pressure the Government of India to succumb to Malik’s demands — which amounted to waging war against the country.
Collectively scrutinising Malik’s email messages, communications, documents and videos of his speeches conclusively proves that he has “failed to reform”, the NIA added.
The agency has appealed for Malik to be awarded the death penalty despite the latter pleading guilty to all the offences he was charged with.
A bench led by Justice Siddharth Mridul Monday issued notice to Malik on the NIA’s appeal, and also issued a warrant for his production before the court on 9 August.
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The case against Malik
Malik was arrested in May 2019 in connection with a 2017 terror-funding case. The NIA had registered the case following stone-throwing incidents in the Valley in June 2016.
According to the NIA’s appeal, 89 violent stone-throwing incidents and other unlawful protests such as school-burning and damage to public property were reported over 10 days in June 2016. Investigations led to the arrest of 366 people in connection with the incidents.
In May last year, Malik had told special judge Praveen Singh that he was ready to plead guilty since he did not want to face any criminal trial. This was after charges were framed against him and others under various sections of the Indian Penal Code (IPC) and the anti-terror law, Unlawful Activities (Prevention) Act (UAPA).
Considering that he was not aware of the maximum punishment that could be inflicted upon him, and did not have a lawyer to explain him the consequences of pleading guilty, the court appointed a lawyer to assist Malik on the issue.
Finally, on 25 May, 2022, the court sentenced Malik to life imprisonment, while opining that his case did not fall into the “rarest of rare” category — a yardstick used by the judiciary to determine whether to impose the death penalty.
Malik was sentenced to life imprisonment on two counts — section 121 (waging war against the Government of India) of the Indian Penal Code and section 17 (raising funds for terrorist act) of the UAPA.
The court also awarded Malik a 10-year jail term under each of the following: sections 120B (criminal conspiracy) and 121-A (conspiracy to wage war against the government of India) of the IPC, and sections 15 (terrorism), 18 (conspiracy for terrorism) and 20 (being member of a terror organisation) of the UAPA.
It also awarded five-year jail terms each under Sections 13 (unlawful act), 38 (offence related to membership of terrorism) and 39 (support given to terrorism) of the UAPA.
All the sentences are to run concurrently.
According to Supreme Court judgments, life imprisonment means incarceration till the last breath, unless appropriate authorities grant remission to the convict. An application for remission can be moved by the convict upon completion of 14 years in jail.
The NIA’s argument
During the hearing in the trial court, Malik had spoken about the issuance of passport to him during the Atal Bihari Vajpayee government at the Centre (1999-2004) and how he was allowed to travel and speak around the world.
This, he said, showed he was not a criminal.
He also stated that as a follower of the “principles of Mahatma Gandhi”, ever since he “gave up arms in 1994”, he was only practising peaceful politics in Kashmir.
The NIA’s appeal, running in over 600 pages, said this claim of Malik was “absolutely false”.
Rather, Malik, it said, had been using the court proceedings as a “means to reach the mass to gain sympathy and further his illegal and immoral agenda of separation of Jammu and Kashmir from Union of India and further waging the war”.
Also arguing on technical grounds, the NIA said that Malik pleading guilty amounted to acceptance of all the facts, and was an admission in court of having committed the offences charged.
Quoting from Black’s Law Dictionary, the NIA said that “plead guilty” has the “same effect as a guilty verdict and conviction after a trial on the merits”.
“There was no plea bargaining or inducement, but the accused had consciously understood the nature of allegations, the charges levied against him, the consequences of acceptance of the same, and then accepted them in entirety, without showing any remorse or regret,” stated the NIA’s appeal.
Speaking to ThePrint, senior Supreme Court advocate Ajit Kumar Sinha agreed with the NIA’s submission in the high court.
He explained that pleading guilty amounts to admission. “There can be no leniency towards the convict. The punishment should commensurate with the offence reflected in the Indian Penal Code and the punishment earmarked in the law,” Sinha said.
The trial court, he pointed out, does not have the jurisdiction to condone that.
“If the statute allows for flexibility and specifies a minimum and maximum sentence, then in such a scenario the judge can use his discretion to sentence the convict to a lesser jail term,” Sinha added.
The NIA, which has filed its appeal a year after the trial court pronounced its verdict against Malik — well beyond the 90-day period fixed in the NIA Act — requested the court to condone the delay.
According to the agency, it had moved an appeal in June 2022 but withdrew it for refiling due to objections by the high court registry.
However, refiling could not happen within the stipulated time period due to “certain exigencies”, said the NIA, adding that officers working on the case were involved in various investigations, and hence could not pursue the matter at the administrative level and consult the legal team in time.
(Edited by Nida Fatima Siddiqui)
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