Dr. Muhammad Qasim Faktu was arrested on fifth Feberuary 1993 on charges of involvement in murder of H.N.Wanchoo, a human rightist activist & a staunch supporter of Kashmir’s freedom movement. Without going into the merits of the case and not necessarily subscribing to his political ideology, there is a strong case for his release on legal and humanitarian grounds .
Initially Dr. Qasim was booked under section 3 of Terrorist & Disruptive Act(TADA) read with section 302 IPC & 120B Ranbir penal code. After a prolonged trial which spread over almost eight years, the designated TADA Court acquitted him with the announcement that prosecution had miserably failed to prove the murder charges against Dr. Qasim . Meanwhile the State appealed against his acquittal in the apex Court which sentenced him to life imprisonment on the basis of his earlier confessional statement with the important direction that he shall be given benefit of the period already undergone (Under trial period) by him. It is a common Knowledge as to how these confessional statements are procured from detenues through sheer coercion & torture which has even been acknowledged by the apex Court.
Mr. Qasim has already served twenty years of imprisonment and is now running in the 21st year of incarceration. The review Board formed by the State and the Honorable High court also recommended his release but the State did not release him on one pretext or the other. There is a great injustice being done to him by keeping him away from his family & two children on the basis of both conviction & interpretation of term “life imprisonment”. TADA court, which is a special court to try offences under that Act, has already acquitted him. If the State thought that it had committed an error in acquitting him, there is every possibility that Honorable Supreme court might have also erred in sentencing him. Day in & Day out we find judgments of session courts being reversed by High Courts, those of various High Courts by Supreme Court and it stands to reason that if there had been a court superior to Supreme Court, its decisions could also have been reversed by that superior court. By this logical argument I want to make the point that even our Apex Court can commit judicial errors. In fact in the past many judgments of Supreme court have been reversed by new judges or another benches of the same supreme court. There is another angle in his conviction which appears to have been ignored. After he was set free by TADA Court, Mr Qasim went abroad and visited Saudi Arabia and London to attend conferences. He was re-arrested at the Indira Gandhi International Airport, New Delhi, on his return from London in 2002. Had he been involved in the heinous crime, he would have never returned to India but settled in any other country by seeking political asylum? After all during his stay abroad, he knew of the fact of State having gone in appeal to highest Court against his order of acquittal by TADA Court.
A total miscarriage of justice is in the offing if the definition of life imprisonment” hitherto meaning 14 or 20 years in prison is reinterpreted to mean imprisonment till death and applied on Faktu and other detenues serving life imprisonment. It is a cardinal principal of criminal jurisprudence that law prevailing at the time of commission of offence should be applied on the convict. Such law cannot be reinterpreted retrospectively to increase the quantum of punishment to an existing detenue. This exercise is generally seen as a revengeful act and an afterthought to keep the political prisoners continuously incarcerated. It needs to be noted that prior to this reinterpretation, more than 19 persons undergoing life imprisonment were released after completion of only 14 years of imprisonment (Excluding remission earned).Even TADA detenues convicted of life sentences have been released in other parts of the Country after completing 20 years in prison. Further the direction of the supreme court that Faktu shall get the benefit of undertrial period becomes redundant & meaningless if the fresh interpretation of rules is applied in his case.
Last but not least- If the Govt in New-Delhi & Srinagar sincerely desire to engage in talks with pro-freedom leaders, it is incumbent then that political leaders of all shades and opinions are released and a conducive atmosphere generated for talks. If the State confines them to Jails-whom then it is going to talk to? In such circumstances, the invitation of talks by State appear a hollow rhetoric.