Why NIA seeking death penalty for Yasin Malik spells trouble for Kashmir

Malik was charged with terror funding in 2017, and arrested in 2019

PTI05_25_2022_000055B In his defence: Yasin Malik after a hearing in 2022. He is representing himself in court | AFP

On May 26, the National Investigation Agency moved the Delhi High Court seeking the death penalty for Yasin Malik, the separatist leader of the Jammu and Kashmir Liberation Front, in a terror funding case. Three days later, the court ordered that Malik be produced before it on August 9 for defending himself.

Malik was charged with terror funding in 2017. He was arrested in April 2019 and sentenced to life imprisonment on May 24, 2022. Malik had refused to contest the charges.

Now, the news of the NIA seeking the death penalty for Malik has evoked sharp reactions in Kashmir. The All Parties Hurriyat Conference, former chief minister Mehbooba Mufti, Sajad Lone of the J&K People’s Conference and Altaf Bukhari of the J&K Apni Party called it “deeply disturbing’’.

[Do not] let the short-term, enforced calm blind you to the possible long-term turbulence. —Sajad Lone, president, J&K People’s Conference
For the first time, militant groups have adopted non-Islamic names. Experts believe this is to give an indigenous colour to militancy.

“In India where even the assassins of a prime minister were pardoned, the case of a political prisoner like Yasin Malik must be reviewed and reconsidered,” said Mufti. “The new political ikhwan (renegades) gleefully supporting his hanging is a grave threat to our collective rights.” She was reacting to an initial statement by Bukhari that those who threaten national security should be deterred. However, after an outcry, Bukhari took a U-turn and appealed to the Union government to reinvestigate the case against Malik. “The NIA is being hasty by approaching the Delhi High Court for the death penalty,” he said.

Lone warned the government not to “be misled by fair-weather Kashmir experts”. He said: “[Do not] let the short-term, enforced calm blind you to the possible long-term turbulence. People of Kashmir are gasping for political oxygen. We cannot afford Kashmir being the oxygen for the political landscape in the rest of the country.” He said the NIA plea was reminiscent of how the Congress government hastily hanged the militant leader Afzal Guru.

The Hurriyat Conference called the NIA plea a “deliberate attempt to provoke and intimidate people and add to their concerns and fears”.

Malik is the last of the leading separatists who still commands influence on both sides of the Line of Control, as well as in Pakistan and the UK, which has a significant immigrant population from Pakistan-occupied Kashmir. Malik’s wife, Mushaal Hussein Mullick, an alumna of the London School of Economics, is from Pakistan. They got married in 2009 and their daughter, Razia Sultana, lives with her mother in Pakistan. Last year, Tariq Ahmad, a foreign minister of state in the UK, told the House of Lords that his government was monitoring Malik’s trial. But, he added that Malik was charged under Indian law and therefore part of an independent judicial process.

It was after the revocation of Article 370 of the Constitution that the NIA and the newly created State Investigation Unit of the J&K Police launched a major crackdown on terror funding in Kashmir. They arrested several people and seized their property. Also attached was property belonging to Jamat-e-Islami, Kashmir’s largest socioreligious party, accused of having links with the terror group Hizbul Mujahideen. The government believes that action against terror funding will choke separatists in Kashmir. By seeking the death penalty for Malik, the security agencies want to send a strong message.

Observers believe that Malik’s execution will not help the situation in Kashmir. After Maqbool Bhat was hanged in 1984, hundreds of young men joined his party as militants, including Malik. Sources in security circles say the “surface calm” in Kashmir should not be misunderstood as peace. “There is a need for a reach-out by the government, political and humane,’’ said a senior officer, on condition of anonymity. “A hardline approach against jailed separatists will make them heroes in the public eye and this will be exploited by hostile forces.”

New militant groups like The Resistance Front and the People’s Anti-Fascist Front have emerged on the scene in Kashmir. Security agencies say these are Lashkar-e-Taiba and Jaish-e-Mohammad in disguise. They have carried out several attacks; the PAFF took responsibility for attacks on security forces in Poonch and Rajouri in the last two years, in which 20 security forces personnel were killed. This is for the first time that militant groups have adopted non-Islamic names. Security experts believe this is to give an indigenous colour to militancy and present it as a reaction to the government’s decision to strip J&K of statehood.

Already, there are signs that the JKLF, which seeks independence from both India and Pakistan and is the only separatist group in J&K that rejects Pakistan’s claim on PoK and Gilgit-Baltistan, could have been reactivated in PoK and is poised to launch a fresh campaign on Kashmir. Action against Malik could hasten such a move and pose fresh security challenges.

Malik is also facing trials under the Terrorist And Disruptive Activities Act in Jammu for the killing of four Indian Air Force personnel in 1990 and the 1989 kidnapping of Rubaiya, daughter of then home minister Mufti Muhammad Sayeed. A single bench of the J&K High Court had stayed the trial in 1995, a year after the JKLF announced a ceasefire. The stay was vacated in April 2019. The charges in the IAF case were framed in March 2020. In Rubaiya’s case, the charges were framed in January 2021, and in 2022 she identified Malik as one of her abductors.

Though others have confessed, Malik pleaded not guilty in both cases and is defending himself in court. In January, he lost the right to cross-examine a witness after refusing to do it through a video call from the Tihar jail. Prosecution lawyer S.K. Bhat told the court that the Tihar jail superintendent had said Malik could not travel to Jammu because an appeal related to his terror funding case sentence was pending before the Delhi High Court.

Malik has said vacating the stay was “against the spirit of the ceasefire”. In a letter released from jail through family, he said the JKLF had announced the unilateral ceasefire after assurances of suspension of “militancy related cases” against him and his colleagues. He also alleged he was being denied a free trial. “I am being presented through a video call, where I can neither hear the arguments nor am I allowed to speak,” he wrote.

The loss of the right to cross-examine the witness could lead to his conviction, like in the terror funding case that he refused to contest. Meanwhile, his family is worried about his health—he has cardiological issues and has had his heart valve replaced.

The hardening of the stand against Malik by the BJP government signals the end of the political immunity that Malik and his group enjoyed after renouncing the gun. Successive governments, including Vajpayee’s, had allowed the JKLF leeway in the hope of winning it over. The JKLF, on its part, honoured the pledge of not resorting to violence. Malik brought this up during his trial in the terror funding case. “[After renouncing militancy], I have followed the principles of Mahatma Gandhi,” he said. “Since then, I have practised non-violent politics in Kashmir. I have worked with seven prime ministers.”

Lawyer Yogesh Bakshi, who represented Malik until the stay in 1995, said he was struggling because he had refused to seek legal help. But, how can he lose the right to cross-examine a witness if he refuses to do so through a video link? “This is the latest law,” said Bakshi. “He has been given many opportunities to engage a lawyer or get assistance from the court, but he has refused to do so.” Bakshi said someone should move the Supreme Court on his behalf because the revision of TADA cases happens only in the apex court.