Judge recuses himself from hearing plea seeking death penalty for Yasin Malik

Delhi High Court judge Amit Sharma on Thursday, 11 July, recused himself from hearing a plea by the National Investigation Agency (NIA) seeking death penalty for separatist leader Yasin Malik in a terror funding case.

The matter was listed before a division bench headed by justice Prathiba M Singh after a change in the roster of judges dealing with such cases.

"List before another bench, of which Justice Sharma is not a member, on 9 August," justice Singh said.

The Jammu and Kashmir Liberation Front chief, currently serving a life term in the case, was virtually present for the court proceedings from the Tihar Jail in New Delhi.

The court directed that he will appear virtually on the next date as well.

On 29 May 2023, the high court issued a notice to Malik on the NIA's plea seeking the death penalty for him in the terror funding case and sought his presence before it on the next date.

Subsequently, jail authorities had filed an application seeking permission for his virtual appearance on the grounds that he was a "very high-risk prisoner" and it was imperative to not physically produce him in court to maintain public order and safety.

The request was allowed by the high court.

In the present matter, on 24 May 2022, a trial court sentenced Malik to life imprisonment after holding him guilty for offences under the stringent Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code.

Malik had pleaded guilty to the charges, including those under the UAPA, and was convicted and sentenced to life imprisonment.

Appealing against the sentence, the NIA has emphasised that a terrorist cannot be sentenced to life term only because he has pleaded guilty and chosen not to go through trial.

While seeking enhancement of the sentence to the death penalty, the NIA has said if such dreaded terrorists are not given capital punishment on account of pleading guilty, there would be complete erosion of the sentencing policy, and terrorists would have a way out to avoid capital punishment.

A life sentence, the NIA has asserted, is not commensurate with the crime committed by terrorists when the nation and families of soldiers have suffered the loss of lives, and the trial court's conclusion that Malik's crimes did not fall within the category of the "rarest of the rare cases" for grant of death penalty is "ex-facie legally flawed and completely unsustainable".

The trial court, which had rejected the NIA's plea for the death penalty, had said the crimes committed by Malik struck at the "heart of the idea of India" and were intended to forcefully secede Jammu and Kashmir from the Union of India.

It had, however, noted that the case was not the "rarest of rare", warranting death penalty.