Here's why court rejected NIA's plea for awarding Malik capital punishment

Delhi court on Wednesday awarded life imprisonment to Yasin Malik, one of the foremost separatist leaders of Jammu and Kashmir, in a terror funding case, saying the crimes were intended to strike at the "heart of the idea of India" and intended to forcefully secede J&K from Union of India.

Special Judge Praveen Singh awarded varying jail terms to Malik for offences under the stringent anti-terror law--Unlawful Activities Prevention Act (UAPA) and the IPC, rejecting the NIA's plea for capital punishment.

He said the crimes for which Malik was convicted were of very serious nature.

“These crimes were intended to strike at the heart of the idea of India and intended to forcefully secede J&K from UOI. The crime becomes more serious as it was committed with the assistance of foreign powers and designated terrorists. The seriousness of crime is further increased by the fact that it was committed behind the smokescreen of an alleged peaceful political movement,” the judge said.

The judge said the manner in which the crimes were committed was in the form of conspiracy whereby there was an attempted insurrection by instigating, stone pelting and arson, and a very large-scale violence led to shutting of the government machinery.

He, however, noted that the manner of the commission of crime, the kind of weaponry that was used, led him to a conclusion that the crime in question would fail the test of rarest of rare case as laid down by the Supreme Court.

The court sentenced the JKLF leader to life in jail for two offences under section 121 (waging war against the Government of India) of IPC and section 17 (raising funds for terrorist act) of the UAPA.

During the hearing, Malik contended he had given up violence in the year 1994.

“After the ceasefire in the year 1994, he had declared that he would follow the peaceful path of Mahatma Gandhi and engage in a non-violent political struggle. He has further contended that since then there is no evidence against him that in the last 28 years he had provided any hideout to any militant or had provided any logistic support to any terrorist organisation,” the court noted from Malik's submission.

Malik told the court he had met all the prime ministers since the time of V P Singh till Atal Bihari Vajpayee who engaged with him and gave him a political platform.

“Government of India had provided him all the platforms to express his opinion in India as well as outside, and government cannot be considered to be a fool to give an opportunity to a person who was engaged in terrorist acts. He has further contended that it has been alleged that he was engaged in acts of violence in the valley post the killing of Burhan Wani.

"However, immediately after the death of Burhan Wani, he was arrested and remained in custody till November 2016. Therefore, he could not have engaged in violent protests,” the judge said.

On NIA's submission that Malik was responsible for the genocide of Kashmiri Pandits and their exodus, the judge said since the issue is not before the court and has not been adjudicated upon it cannot allow itself to be swayed by the argument.

“I accordingly find that this case does not call for awarding death sentence as demanded,” the judge said, rejecting NIA's plea for awarding Malik capital punishment. On Malik's submission that he gave up the gun in 1994 and, thereafter, he was recognised as a legitimate political player, the judge said, “In my opinion, there was no reformation of this convict.” “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.

"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 upon 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 said.

However, the convict did not desist from violence, he noted.

“Rather, betraying the good intentions of government he took a different path to orchestrate violence in the guise of political struggle. The convict has claimed that he had followed Gandhian principle of non-violence and was spearheading a peaceful non-violent struggle.

"However, the evidence on the basis of which charges were framed and to which convict has pleaded guilty, speaks otherwise,” the judge noted.

The entire movement, he said, was planned to be violent.

“I must observe here that the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi's principles there was no place for violence, howsoever high the objective might be. It only took one small incident of violence at Chauri Chaura for the Mahatma to call off the entire non-cooperation movement," the judge said.

He noted that Malik, despite the large-scale of violence engulfing the valley, neither condemned it nor withdrew his calendar of protest.

The judge said, 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.

The court awarded Malik 10 year jail term each under sections 120 B (criminal conspiracy), 121-A (conspiracy to wage war against the government of India) of IPC and sections 15 (terrorism), 18 (conspiracy for terrorism) and 20 (being member of terror organisation) of UAPA.

It also awarded five year jail term each under sections 13 (unlawful act), 38 (offence related to membership of terrorism) and 39 (support given to terrorism) of UAPA.

All the sentences will run concurrently.

The court premises was under heavy security blanket through the day, with police and paramilitary forces standing guard.

Before Malik was brought into the courtoom, personnel from the NIA, the anti-terror federal agency, pressed into service sniffer dogs and conducted a thermal scanning.  After the pronouncement of the sentence, a group of people raised the Indian tricolour and shouted slogans against Malik outside the court premises.

Parts of Srinagar observed a shutdown ahead of the court's order.

Most of the shops and business establishments in Maisuma and adjoining areas, including some in Lal Chowk, were shut. Shops in some areas of the old city were also closed, but public transport was normal.

Clashes erupted between supporters of Malik, the JKLF chairman, and security forces in Maisuma locality in Srinagar.