On India’s Political Imprisonment of Kashmiri Muslims

Statement issued by the Committee for The Release of Political Prisoners

At the outset it is a case of gross injustice and political vendetta on Dr. Muhammad Qasim Faktoo who has spent twenty years of his life in prison.

The case of Dr. Muhammad Qasim epitomises how political convictions, of being a Kashmiri Muslim sharing the political aspirations of the Kashmiri people is enough to earn the ire of the political establishment.

Dr. Muhammad Qasim was arrested on 5 February 1993 for his political views. In order to prolong his incarceration, he was booked under Sec.3 TADA, and Sec 302 read with 120-B CrPC. On 14 July, 2001 the TADA Court in Jammu had acquitted him saying that the prosecution had miserably failed to prove the case against Dr. Muhammad Qasim and the other accused. As the State of J&K challenged the acquittal before the Supreme Court, Dr. Muhammad Qasim was sentenced to life based solely on a confession statement made under section 15 of TADA. Even when the SC sentenced him to life it was mentioned that the “accused shall be given benefit of the period already undergone (undertrial period) by then”.

After the completion of 14 years, the J&K High Court directed the Jail authorities to place Dr. Qasim’s case before the Review Board for consideration keeping in spirit with the observations of the SC. The Review Board recommended his premature release on 3 June 2008. Contrary to the recommendations of the Review Board, the J&K government brought in the interpretation that the J&K Jail Manual Rule 54.1 debars TADA life convicts from release on completion of two thirds (14 years) of 20 years. (Govt. order No. Home-773(P) of 2009 dated 14.09.2009)

Amidst conflicting opinions in the High Court between a single-bench judge, which initially quashed the government order, while a double-bench upheld it. Taking refuge in the Rule 54.1 of the Jail Manual, the long arm of political vendetta stood between a forthright consideration of the outstanding situation and the release of Dr. Muhammad Qasim. On 31 May 2012, Dr. Muhammad Qasim completed 20 years of incarceration. It has been held unequivocally that despite the correspondence of Sec. 401 and 402 of the State Code of Criminal Procedure to Sections 432 and 433 of the Central Code, the power of the executive is absolute and unfettered to remit a sentence but this was elusive in the case of Dr. Qasim.

As Dr. Muhammad Qasim has been sentenced to life under the J&K Manual, which made him ineligible to avail the provision of release after 14 years of imprisonment, it logically followed that the same manual provides for putting an end to his incarceration after the completion of 20 years.

What makes matters worse in J&K is the overwhelming sense of vendetta vis-à-vis political prisoners.

The Indian State, Jammu & Kashmir state in particular, have deliberately evaded the challenging question of evolving jurisprudence consistent with the question of political offences or offences the state deems are against the will of the State. The courts’ disquiet in developing jurisprudence dealing with political offences that are not borne out of individual interest of the alleged offender but of collective interest has resulted in adhocism and arbitrariness taking precedence over a possible judicial remedy in the ordinary law consistent with the already established precedence in international law.

Perhaps for the first time the Calcutta High Court (CRR 463 of 2012 With CRR 1312 of 2012 With CRR 4000 of 211 on 8 August 2012) while recognising the right of the Maoist prisoners to be treated as political prisoners has brought in the question of the need to develop jurisprudence dealing with political offences.

Notwithstanding the fact that the above said judgment was based on the West Bengal Correctional Services Act 1992 and though there is yet to be a statutory recognition to political prisoners in J&K, the Indian State has, to some extent, acknowledged the difference between political prisoners and other offenders. Since 1995 India allowed International Committee of Red Cross to visit these prisoners and ascertain their conditions within jails (though the distinction, however, remained confined to recognized jails and not umpteen detention centres like interrogation centres and police stations where the brutalities are perpetrated).

The need of the hour is to expand the ambit of the distinction of political prisoners from the domain of treatment of prisoners to the jurisprudence of conviction and penology.

Only in such a scenario can there be some safeguards, if not all, given the nature of the Indian State, to deal with such prolonged incarceration of prisoners for their political beliefs.

Dr. Muhammad Qasim has undergone twenty years of incarceration. Many more will continue to face the same fate if the democratic and freedom-loving people of the Subcontinent fail to raise their voice against such inhuman and beastly face of the so-called democracy of the Indian State and its judiciary and executive.

As in the case of Dr. Muhammad Qasim, the 45-odd Kashmiri political prisoners serving life sentence in various prisons should also be released. Below is a list of some of these prisoners. Most of the lifers in this list have already finished ten years or more of their sentence.

Putting Dr. Muhammad Qasim further behind bars goes against the very grain of all civil and political rights and freedoms assured by the Constitution of India as well as the International Law. The prolonged incarceration of Dr. Muhammad Qasim is a testimony to the continuing repression and trampling of all freedoms of the people of J&K for their political aspirations. As the state uses every draconian law within its reach to the maximum (in Dr. Muhammad Qasim’s case the J & K Jail Manual, read with TADA), thousands of Kashmiri Muslims are kept behind bars in various prisons while hundreds languish in undisclosed torture and detention centres.

Following is an Incomplete list of Kashmiri Muslims Serving Life Sentence in various jails such as Srinagar, Jammu, Udhampur, Tihar, Mumbai, Gujarat, Nagpur etc.:
1. AB Rashid, Udhampor was awarded Death but now changed into Life, Jammu District Amphala Jail
2. Aashiq Hussain Faktoo alias Dr Muhammad Qasim Faktoo  Srinager Jail.
3. Ghulam Qadir Butt R/O Dooru Mir Maidan, Islamabad in Khutwa Jail now in Srinagar Jail.
4. Muhammad Ayoub Mir, Sadrabal Kot Bulwal Jail Jammu
5. Muhammad Ayoub Dar, Rawal Pora, Srinagar presently in Srinagar Jail, Life sentence by TADA court Jammu in 2009
6. Iqbal Jan, Bandipora   Srinagar Jail
7. Mustaq Kaloo, Sopore  co-accused with Iqbal Jan, Tihar jail, New Delhi
8. Mohammad Amin Wani, Banihal
9. Mehmood Toopiwal, Kangan
10. Abdul Waheed Thachi, Banihal
11. Jafar Umar Khanto
12. Javeed Khan, Nowpora, Srinagar Tihar Jai  s/o M Shafi Khan Nowpora Srinagar 517-96 Lajpath Nagar Blast
13. M Shafi Khan @Prof Shafi Sharyati Hariwanun Khansahab in Sgr Jail.
14. Noor Muhammad Tantry,  Tral, earlier in  Tihar, now in Srinagar
15. Feroz Ahmad,  Budgam Beerwa
16. Sh Raeis Delhi Tihar
17. Ishaq Pala   s/o GH Rasool Tariq Shiekh, Manihal Shopian
18. Shabir Ahmad s/o M Abdullah Butt, Handwara Maratham
19. Mustaq Malik  s/o Gh Muhammad  Shah, Gund Handwara
20. Gh Muhammad Butt s/o Noor Muhammad Butt Koker Bagh Khag
21. Ab Hamid Teeli s/o GH Hasan  Kokerhama, Kulgam
22. Nazir A Shiekh s/o Ab Rashid Batamaloo
23. Showkat A Khan Chotabazar present Nishat
24. Zakir Hussain alias Umar Faoorq, son of Ali Mohd of Malhar,
25. Fayaz Ahmad Shah of Babnad Shopian and Muhammad Syed Bhat of Dirhama Bijbehara.
26. Samiulla Sheikh R/O Patan Baramulla
27. Ghulam Nabi Soura, Srinagar, Kashmir Central Jail, Srinagar
28. Amin Dar  Banihal, Jammu, Jammu Jail
29. Barkat Hussain S/O Neik Muhammad Pulwama, Kashmir Jammu Jail
30. Farooq Ahmad, Central Jail, Nagpur
31. Farooq Chopan, Central Jail, Mumbai
32. G. MuhammadWani, Jammu Jail
33. G. Qadir Butt Kupwara, Kashmir, Sub Jail, Kathua
34. Lala Hussain, Jammu Jail
35. Muhammad Akram Butt
36. Muhammad Aslam S/O Kamal Din, Jammu Jail
37. Muhammad Latif  S/O Wali Muhammad, Jammu Jail
38. Muhammad Shafi S/O Abdal Karim, Jammu Jail
39. Muhammad Hussain R/ O Hadmat, Jammu Jail
40. Muhammad Shafi S/O Mohammad Abdullah, Jammu Jail
41. Muhammad Yousuf S/O Fetha Muhammad, Jammu Jail

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