The Delhi High Court has issued a notice to the convicted terrorist Yasin Malik following National Investigation Agency’s (NIA) appeal before the court seeking the death penalty. On May 26, the NIA moved the Delhi High Court seeking the maximum punishment for the convicted terrorist in the terror funding case.
The NIA’s counsel Solicitor General of India Tushar Mehta argued that propagating the idea of separating one region from the country makes the case “rarest of rare.”
He added, “Any terrorist can come here and do terrorist activities, and court will say since he has pled guilty, I will give him life (sentence) and not capital,” in view of Yasin Malik pleading guilty before the trial court in the terror funding case. “You get training from Pakistan and then you plead guilty and be in jail to be rescued later, this is thus a statutory appeal under NIA Act which lies for sentence also,” he further contended.
Tushar Mehta also informed the court that Yasin Malik is responsible for killing four Indian Air Force (IAF) officers in Rawalpora, Srinagar and kidnapping Dr Rubaiya Sayeed, then-Union Minister Mohammed Sayeed’s daughter. He reiterated that Yasin Malik’s case is a “rarest of rare case” and he deserves capital punishment.
He also informed the court that four terrorists were released in exchange for Mohammed Sayeed’s daughter, who also planned the 26/11 Mumbai terror attacks. “Your lordships may recall, because of this kidnapping (of Rubaiya Sayeed), four dreaded terrorists were required to be released and they masterminded the 26/11 Bombay attacks,” he said.
While Tushar Mehta submitted that the convicted terrorist was charged u/s 121 (waging war against the Government of India) of the Indian Penal Code (IPC), which is punishable by death, the court questioned the NIA about the specific charges against Yasin Malik and to which he pled guilty.
The court asked, “Is that in so far as the chargesheet refers to causing death of public functionaries and abducting the individual to force the government to do something, where is that in the order on charge?” The court added, “Chargesheet it is there, where is it in order? We are not talking about chargesheet. We are talking about specific charges.”
The court then asked the NIA to produce relevant documents on record indicating charges against the convicted terrorist. The court said, “You take a passover, but what we want to know is…. In the chargesheet, those accusations have been levelled…the order on charge doesn’t mention those allegations.”
The Solicitor General responded that there is a specific reference to section 15 of the Unlawful Activities (Prevention) Act (UAPA) in the trial court’s order. He added, “And also for section 121 of IPC, there is specific reference. There are more than one references to secessionist and terrorist acts which gives rise to death penalty.”
Thereafter, the court issued notice on the NIA’s plea and also on its application seeking condonation of delay in filing the appeal.
The court said, “In view of the circumstance that Yasin Malik, the sole respondent in this appeal, has inter alia pleaded guilty to a charge under section 121 IPC which provides for alternate death sentence, we issue notice to him in both the application and appeal through jail superintendent,” while issuing production warrants for the convicted terrorist.
The Solicitor General said, “I am obliged because your lordships otherwise anyone can plead guilty and avoid death sentence and in future someone can take them back,” while the court listed the case for hearing in August. Tushar Mehta further said that Yasin Malik pled guilty “very tactfully,” to which the court said, “That may be his constitutional right.”
Tushar Mehta drew a parallel between Yasin Malik and Osama Bin Laden, stating that “If Osama Bin Laden was tried here, he would have been permitted to plead guilty….” Justice Siddharth Mridul replied, “We can’t compare this gentleman to Osama Bin Laden because he nowhere stood trial.
Special NIA Court’s Decision
In May 2022, a Special NIA Court sentenced Yasin Malik to life imprisonment in connection to a terror funding case. In the terror funding case, Special Judge Praveen Singh observed that Yasin Malik’s crimes failed the test of rarest or rare cases as per the Supreme Court’s rulings, and thus sentenced the terrorist to life imprisonment.
The NIA had argued before the trial court that, “The acts of the convict had led to severe chaos and unrest in the valley and had resulted in loss of numerous lives and damage to property.” The NIA added, “The convict has also found to be engaged in activities of terror funding, being a member of terrorist gang and supporting terrorist organizations as well as for offences u/s 121 IPC and 121A IPC whereby he had been found to have waged war against UOI. The convict has not denied these allegations and chose not to contest these allegations.”
Furthermore, the NIA contended, “the acts of the convict and the results thereof whereby he had waged war against UOI and had attempted to wage such war had resulted in loss of life and property and thus, a message needs to be sent to the society that in such cases, no leniency can be shown.”
The NIA had sought maximum punishment for Yasin Malik, contending that the punishment awarded to him should serve as a deterrent and to set an example to prevent others from joining a terrorist organisation and waging war against the Union of India.
Furthermore, the NIA argued that there are no mitigating circumstances in favour of the terrorist while seeking the death penalty for waging war against India. The NIA also sought maximum punishment as per the provisions of the law, against the accused under other sections he was charged in the case.
The NIA further contended that terrorist Yasin Malik was responsible for the genocide and exodus of Kashmiri Pandits. The NIA submitted, “The convict is a hard core criminal and thus, there are no chances of his reformation. Therefore, the convict should be awarded death penalty for offence u/s 121 IPC and maximum punishment for other offences for which he has been convicted.”
However, the Amicus Curiae contended that the retributive theory has no place in the Indian judicial system. While arguing against the death penalty, he contended that if the purpose is deterrence, maximum punishment need not be awarded. He said, even in preventive theory is applied to deciding the terrorist’s sentence, then the incarceration of the convict can serve the purpose.
The Amicus Curiae contended that the “demand of death sentence is highly unjustified as the case of the convict does not fall into the category of rarest of the rare case.” He further said that as the convict pled guilty in the case, it should be taken into consideration as a pointer to the inclination of the convict to reform. Furthermore, he contended that a minimum sentence should be awarded to the convict.
The trial court noted that the convict was involved in violent terrorist activities prior to 1994, however the convict claims that “he gave up the gun” in 1994 after he was recognised as a “legitimate political player,” as the Government of India was engaging with him and “providing him the platforms to express his opinions.” The court said, “On the face of it, it seems to be a very sound argument which would give an impression that convict has already reformed. However, in my opinion, there was no reformation of this convict.”
The court further noted that while the claims of Yasin Malik giving up the gun in 1994 may be correct, he has never expressed regrets for the violence he committed. The court said, “It may be correct that the convict may have given up the gun in the year 1994, but he had never expressed any regret for the violence he had committed prior to the year 1994.”
The court noted while the Government of India took the convict’s claims of giving up violence at face value and gave him a platform to express his opinions, he betrayed the intention of the government and took the path of orchestrating violence in the guise of political struggle.
The court observed that while the convicted terrorist claims that he had followed the Gandhian principle of non-violence and was spearheading a peaceful non-violent struggle; the “evidence on the basis of which charges were framed and to which convict has pleaded guilty, speaks otherwise.”
“It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non cooperation movement but the convict despite large scale of violence engulfing the valley neither condemned the violence nor withdrew his calendar of protest which had led to the said violence,” the court added.
The court held, “I accordingly find that in the present case, the primary consideration for awarding sentence should be that it should serve as deterrence for those who seek to follow a similar path,” while sentencing terrorist Yasin Malik to life imprisonment.
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