The case of Dr. Muhammad Qasim Faktoo

 • Conviction by SC after being Acquitted by TADA Court• Refusal of Remission of Sentence after twenty years imprisonment

Recent history is a witness to many ruthless events which include killing of innocent people ranging from the age of 5 to 75, the custodial torture and disappearance of persons taken into illegal custody. Illegal incarceration of numerous people making use of draconian laws and state security apparatus enjoying all sorts of impunity and amnesty. The legal process and associated institutions have only complimented the oppressive regime than to provide any protection under the existing system of grievance mechanism. Applying the standards prescribed at International level the legal process has failed to fulfill the minimum standards of justice. Everything is controlled by invisible hands to serve the interests of a regime which has developed vested interest in maintaining status quo by totally denying the most fundamental freedoms and liberties of State Subjects. A common man has live in a continuous state of fear in the most beautiful and heavily guarded open prison of the world. We have seen the wastage of precious human material in the form of youth who never were able to come out of the web of legal process aimed at punishing and deterring a whole population. These men of conscience were segregated on the based of their political beliefs and ideologies which were thought to be Inimical to the policies of ruling regimes. Although the world communities have raised their voice and concern about such atrocities and violations but in the case of Kashmir the International Community has marinated sinister silence, as these actions are camouflaged under the shroud of democracy and rule of law. The legal system and judiciary has only complimented and facilitated the implementation of fascist policies by not protecting the citizens at any stage.

The enactments like TADA and POTA are embodiments bizarre denial of human rights of citizens and were condemned worldwide as draconian laws which did not fulfill even the minimum standards of justice prescribed and accepted internationally by civilized societies. The TADA was condemned as most barbaric and inhuman law adopted by a country claiming to be a protagonist of democracy and follower of rule of law. Under pressure from international Human Rights Organizations and activists the law was allowed to lapse in the year 1993. But the case of Kashmir is always an exception and the people are still being tried under TADA in the State.

In its application of various laws promulgated by Indian Government, the jurists are faced with unique problems. State being a disputed territory and matter being pending before UN Security Council and several rounds of talks held every now and then to solve this vexed problem. The relation of the two parts of the State of J&K with its neighbors who are administering its two parts accepting its separate identity. The Supreme Court existing in Muzzaffarabad claims to have jurisdiction over whole of state of J&K and on the other hand the jurisdiction of Indian Supreme court having been extended to the State of J&K in sixties through issuance of Presidential Orders. Enactment of TADA in 1987 providing for no appeal to the High Court but only one appeal to the Indian Supreme Court Establishment of Special Designated Court under TADA[P] Act at Jammu, 300 kms away from the scene of occurrence. The High Court of J&K being the Highest court in the state under its own Constitution lost jurisdiction for its Subjects. With the result the three convicts in the case of Dr. Muhamamd Qasim Faktoo even though having been discharged by the Trial Court had to face the ordeal of second round of Trial before the Indian Supreme Court where they could not arrange proper defense. The Supreme Court relying on the most objectionable clauses of the TADA{P{Act} providing for admission in custody sentenced them to life imprisonment. A arrested were made in the year 1993. Prosecution was initiated by registering an FIR in P/S Shaheed Gunj Srinagar but the accused had to face trial in Jammu and Delhi only. Fortunately the Special Designated Court did not find any evidence against them and had to acquit them. The arrested persons were released. The State took it as a challenge and thought it a failure of their authority in the State of J&K. The Central agency CBI , to who the case had been transferred filed Challan before Designated Court under TADA at Jammu on 25.4.1994. Although, after appreciating the evidence led by the prosecution against the accused the Court acquitted the accused on 14.7.2001, yet the CBI decided to further prosecute them by filing appeal in Supreme Court. The accused had to spend their eight precious years of prime youth in interrogation and detention centers before the filing of Appeal .The prosecution chose to prefer an appeal before the Supreme Court by way of Cri Appeal No;889/2001 and the Hon’ble Supreme Court of Indian allowed the appeal on 30.1.2003. The order of the Trial Court/Designated court has been set aside and the accused detenues sentenced to undergo life imprisonment for the offences u/s 3 of TADA [P] Act, read with Section 302 and 120 of IPC. The accused were to be given benefit of the period already undergone by them. The Supreme Court being the highest forum and the intermediate level forum of High Court being non existent, the convicted persons had no other legal remedy available to them.

That the supreme Court relied on the ‘confessions’ extracted from the accused persons in custody under extreme torture which cannot be relied upon under any accepted norms of criminal law and International humanitarian law. The accused persons have undergone a period of more than 20 years in jail and a right accrues to them to be considered for Remission under the provisions of Jail Manual prepared on the based of J&K Prisoners Act. Under the relevant provisions contained in Jail Manual and J&K Prisoners Act applicable in the state, the sentence of imprisonment for life means a sentence for a period of 20 years. It has been clarified that under Article 34 of the Constitution of J&K ,that Governor has the power to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offences against any law relating to a matter to which executive power of the State extends. In pursuance of these powers, the Governor has been remitting the punishment of some prisoners /convicts on the occasion of the Republic day falling on 26th January every year.

In order to screen the cases of convicts divisional boards were constituted to consider the cases of premature release such convicts on various humanitarian grounds, like severe illness etc. In order to ensure that remissions were granted on uniform basis and that there was no discrimination between the same type of prisoners, it was laid down that the remissions were to be considered on the following grounds:

i) From amongst such convicts who have been awarded life imprisonment and have completed 13 years of their sentence should be considered for special remission subject to maximum of one year.

ii) From amongst other convicts only such of them be considered for remission who have yet to undergo six months imprisonment.

These instructions are contained in a circular issued by the Home Deptt vide Circular No: Home-IS[Jails}67/77 dated; 18.4.1981

6. That Chapter XXI of ” Manual for the Superintendence and Management of Jails” deals with the LIFE CONVICTS., and it has been prescribed inter alia in this chapter that,

“…….Prisoners sentenced to undergo life imprisonment should be admitted in Central Prisons.

During admission -quarantine period, a comprehensive social and psychological study of the inmate should be undertaken. Based on such study, the training and treatment should be planned. The treatment program should generally consist of diversified education, work, vocational training and cultural activities, training in self discipline and training in responsible community living. Such a program should be according to the needs of each indivisual inmate….”

21.8] The case of every life convict shall be reviewed once in every six months or more often, if necessary. Through such review, the institutional program can be adjusted to the inmates problems and needs.

Review

21.21] The case of life convict may be placed before the Review Board for being considered as per provisions of Chapter LIV

21.22] Shortly before completion of 14 years of imprisonment .inclusive of remission, the case of every life convict shall be reviewed by the Review Board and their recommendation with that of the Inspector General regarding his release shall be submitted to Government alongwith the following documents

(i) nominal roll

(ii) opinion of District Superintendent of Police and DM

(iii) review file

(iv) summary sheet

(v) case file

(vi) information regarding co accused ,if any

21.23] The Govt may order the release of the life convict or indicate when his case is to be examined again.

The State was governed by Punjab Jail Maunual till the year 2000 and there were clear cut instructions for considering such cases for remission but these cases have been dealt with selectively. The state has considered the cases of so many convicts and secured remission for then but the case of the petitioner was never considered by any authority at any stage. A list of convicts already considered and released is enclosed which indicates discrimination and lack of attention on the part of the authorities. Analyzing the history of events associated with the Trial of Dr. Muhammad Qasim Faktoo who is a scholarly figure and has spent his time educating the hundreds of inmates inside the jail preparing them for examinations for distance learning course under IGNOU. Concrete recommendations made by Jail authorities for granting him remission. Petitions filed in the J&K High Court seeking interpretation of the provisions of the Jail Manual and asking for the reasons for selective approach in granting remission to similar cases. But all attempts have so far failed. The reasons are simple. The ruling regimes who have not moral or legal right to remain in power are afraid of him. They have no answer to his arguments. Author of fifteen scholarly publications can speak ,write and discuss contemporary political problems with clarity. Having not compromised he can speak the truth and nothing but truth which is not permitted in this part of the world. Failing to secure justice under the existing available redressal mechanisms, the individual can only be advised to invoke the remedies available under International Humanitarian Law

Author is an advocate at Srinagar High Court. Opinion expressed are authors own.

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