Betrayed govt's trust; orchestrated violence in the guise of political struggle: Judge on Yasin Malik

"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 Special Judge Praveen Singh said while pronouncing life term for Yasin Malik on Wednesday.

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

The life term was awarded two offences - section 121 (waging war against government of India) of IPC and section 17 (raising funds for terrorist act) of the UAPA.

According to the Supreme Court, life imprisonment means incarceration till the last breath, unless the sentence is commuted by the authorities.

However, the authorities concerned can review the punishment only after a minimum of 14 years of imprisonment has been completed, senior advocate Vikas Pahwa said.

He was also awarded 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.

In a 20-page order, the judge said the crimes for which Malik has been convicted were of very serious nature.  The judge, however, noted that the case was not the “rarest of rare”, warranting death penalty.

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.

While awarding life imprisonment under section 17 of the UAPA, the court said financing is the backbone of any operation including terrorist activities.  “In the present case, the order on charge specifies how funds were raised and how they were received from Pakistani establishment as well as designated terrorist Hafeez Saeed and through other hawala operations. It is these funds that were used to create unrest where under the guise of public protests, paid terror activities of stone pelting and arson at mass scale were committed,” the judge said.

He noted had there been no such funding for the convict to conspire to commit these acts and to pay the perpetrators, the violence and mayhem at this scale could not have been committed.  “Therefore, in my considered opinion, it is high time that it is recognized that terror funding is one of the gravest offences and has to be punished more severely,” the judge said, while also imposing a fine of Rs 10 lakh on Malik.

On NIA's submission that Malik was responsible for the genocide of Kashmiri Pandits and their exodus, the judge said, “I find that as this issue is neither before this court, nor has been adjudicated upon and thus court cannot allow itself to be swayed by this argument.” “I accordingly find that this case does not call for awarding death sentence as demanded,” the judge said, rejecting the NIA's plea for capital punishment.

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 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.

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.