Why Yasin Malik was not given death sentence by Special NIA Court

Jammu Kashmir Liberation Front chief Yasin Malik was on Wednesday sentenced to life imprisonment by a Special National Investigation Agency (NIA) judge Parveen Singh in a terror funding case [NIA v. Yasin Malik]..Malik had pleaded guilty to the offences he was charged with in the matter, including that of waging war against the State under Section 121 of the Indian Penal Code (IPC) that can attract a maximum punishment of death penalty. However, judge Singh ruled that the death sentence is not warranted in the present case.Special Public Prosecutor representing the NIA, Neel Kamal, submitted that punishment should act as a deterrent, and there were no mitigating circumstances in favour of Malik, who had no scope for reformation.Amicus curiae Akhand Pratap Singh, appearing for Malik, however, argued that deterrence or retribution could not be a factor for punishment once the accused had pleaded guilty to the charges.Malik had submitted before the judge that he had stopped violence from 1994 onwards, engaging with Indian leaders across the political spectrum. He emphasised on his decision to follow the peaceful path of Mahatma Gandhi since 1994.At the outset, the judge noted that it is well-settled that merely because the offence provides for capital punishment, the same cannot be handed over to a convict in a routine matter or as a matter of rule.He relied on the two Supreme Court decisions in this regard - Bachchan Singh v. State of Punjab and Machchi Singh v. State of Punjab - to arrive at the conclusion that the case is not a fit one to award capital punishment. "The net result of the judicial pronouncements is that death penalty should be awarded in exceptional cases where the crime by its nature shocks the collective consciousness of the society and has been committed with unmatched cruelty and in a gruesome manner," the Court noted. .Discussing Supreme Court precedent that lays out the criteria to be fulfilled before imposing death sentence, the judge explained why the present case does not meet the 'rarest of the rare' category. "In the present case, the manner in which the crime was 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 shut of the government machinery and ultimate secession of J&K from UOI. However, the manner of the commission of crime, the kind of weaponry used in the crime lead me to a conclusion that the crime in question would fail the test of rarest of rare case as laid down by the Supreme Court," it held. The counsel for NIA had contended that while awarding sentence, the court should consider that the convict was responsible for the genocide of Kashmiri Pandits and their exodus.However, the Court said that it was not dealing with that issue in this case. "Senior PP for NIA has tried to impress upon the court that while awarding sentence court should consider that the convict was responsible for the genocide of Kashmiri Pundits and their exodus. However, 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," the Court stated.It, therefore, concluded that this case did not call for awarding death sentence as demanded. .On the specific offence of terror-financing, the court noted that financing is the backbone of terror activities and it is high time the grave nature of the same is recognised. "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. 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.".The judge noted that the crimes in question were intended to strike at the heart of the idea of India and secede Jammu and Kashmir from India. Further, Malik had not expressed any regret for his crimes prior to 1994 and the evidence on record belied his Gandhian claims, the order noted.It was thus stated in the order that the primary consideration for awarding sentence in the matter would be "that it should serve as deterrence for those who seek to follow a similar path.".Thus, the Court sentenced Malik to life imprisonment.Read more about the sentence handed down to Malik for various offences here. [Read Order]