Reformative Theory Takes Back Seat In Heinous Terrorist Crimes: J&K High Court Dismisses Remission Plea Of Separatist Ashiq Hussain Factoo

The Division Bench, comprising Justices Sanjay Dhar and M.A. Chowdhary, declared that the reformative theory of punishment must yield in cases involving terrorist crimes, particularly in regions like Jammu and Kashmir, where militancy has been rampant for over three decades.

“At least until such time the social environment in our country improves, and we have adequate facilities of reformation in place, the reformative theory must take a back seat,” the Bench observed, denying Factoo's plea for remission.

Background:

Factoo, a former member of the Hizbul Mujahideen, has been serving a life sentence for his involvement in the assassination of prominent Kashmiri human rights activist Hriday Nath Wanchoo in 1992.

Convicted under the Terrorist and Disruptive Activities (Prevention) Act (TADA), Factoo along with other accused were convicted of offences under Section 3 of TADA Act as well as Section 302 read 120-B RPC and consequently sentenced to undergo life imprisonment which has spanned over three decades.

The present case arose when Factoo challenged the state's refusal to grant him remission, arguing that he had served over 20 years and was thus eligible for release.

Representing Factoo, Senior Advocate Mr. Collin Gonsalves argued that his client had completed more than 20 years of imprisonment, and as per Section 3 of the Jammu and Kashmir Prisoners Act, life imprisonment should be considered as 20 years. Gonsalves also contended that Rule 54.1 of the Jail Manual which excluded convicts of terrorist crimes from remission violated Articles 14 and 21 of the Indian Constitution, infringing on Factoo's right to life and equality.

Countering these arguments, Senior Additional Advocate General (Sr AAG) Mr. Mohsin-ul-Showkat Qadri, representing the state, argued that terrorist crimes, particularly in Jammu and Kashmir, have caused severe and long-lasting damage to society.

He stated, terrorist crimes have adversely impacted the lives of the entire population and the classification of such crimes in the Jail Manual is reasonable and necessary to deter potential threats. Qadri further emphasized that such crimes are a class apart, deserving distinct and harsher treatment under the law.

Court Observations:

Addressing the nature of life imprisonment the bench referenced Gopal Vinayak Godse v. State of Maharashtra (1961) and many other precedents to reiterate that life imprisonment means incarceration for the convict's natural life unless remission is granted by constitutional authorities under Articles 72 or 161 of the Constitution, or Section 432 of the Code of Criminal Procedure.

The Court observed,

“Imprisonment for life would, in all cases, mean imprisonment for the natural life of a convict unless a part of the sentence is remitted by the appropriate authority. A prisoner cannot claim release as a matter of right after 20 years of imprisonment.”

On the constitutional validity of Rule 54.1 of the Jail Manual, which bars remission for convicts of terrorist crimes, the Court upheld the rule's legality. It acknowledged the specific social and political context of Jammu and Kashmir noting,

“This part of the country has been reeling under militancy for over three decades. Terrorist crimes, particularly in the erstwhile State of J&K, have caused immense harm. The State is justified in treating such crimes differently from those committed in regions relatively free from militancy, like Delhi.”

Rejecting the claim that the rule violated Articles 14 and 21, the Court stressed the unique nature of terrorist crimes and remarked,

“.. terrorist crimes in our country, more particularly in the erstwhile State of J&K, have adversely impacted the lives of the whole population. In fact, terrorism has been a scourge and menace for the people of this country. Therefore, learned Senior AAG is right in his submission that terrorist crimes or for that matter other crimes mentioned in the impugned Rules are a class apart and the classification of crimes made in the impugned Rules is reasonable and not arbitrary”

Invoking the Supreme Court's observations in Maru Ram vs. Union of India and another, (1981) stating that heinous crimes like terrorism necessitate a departure from the reformative theory of punishment the Bench remarked,

“The question, therefore, is-should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible”

While maintaining that the Jail Manual statutorily restricts the state from granting remission for terrorist crimes, the court clarified that Articles 72 and 161 of the Constitution continue to provide constitutional authorities the President and Governor with the power to grant pardons or remission.

“Even though there is statutory restriction upon the respondents to consider the case for remission, it is always open to constitutional authorities to exercise their higher powers under Articles 72 and 161 of the Constitution.” the bench underlined.

Finding no merit in his plea the court thus upheld the constitutional validity of the prison rules he challenged and also declined his prayer for remission.

Case Title: Dr. Ashiq Hussain Factoo Vs State of J&K & Ors

Citation: 2024 LiveLaw (JKL) 270

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