Till Death

   

The J&K High Court ruling which upheld the ‘imprisonment for life’ sentence of the incarcerated separatist, Ashiq Hussain Faktoo, has put the ball in the government’s court to decide on his petition seeking release on completion of 20 years in jail. SHAH ABBAS explains the contours of the judgment and its ramification for other prisoners serving life sentence in different jails.

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Winding up his 18-page judgment on the petition of jailed Muslim League and Hurriyat (G) leader, Dr Ashiq Hussain Faktoo on Nov 16, the honorable justice Mansoor Ahmad Mir of state High Court wrote, “In view of what has been discussed herein above and in light of the law laid down by the judgments supra, coupled with the fact that the respondents vide order dated August 23, 2012 have dismissed the representation of petitioner, this writ petition merits dismissal. Dismissed as such along with all connected CMPs. However, the petitioner is at liberty to work out a remedy, if any, available under law.”

In its verdict, the J&K High Court categorically puts the ball in the court of government, saying it was the government’s prerogative to remit or release any prisoner and the court has nothing to do with the remission or release of a prisoner.

“While going through the provisions of law, one comes to a conclusion that life imprisonment means imprisonment for life and it does not automatically come to an end without any order from the competent authority,” the verdict says.

The ruling was delivered by Justice Mir while dismissing the petition of Qasim, who has been sentenced to life imprisonment in the murder case of H N Wanchoo, a human rights activist who was killed in 1990. Faktoo was seeking release as he completed 20 years in jail in May this year.

Hurriyat (G) chairman, Syed Ali Geelani, had launched a sustained campaign earlier this year for Faktoo’s release. When Faktoo was shifted from Srinagar Central Jail to a police detention centre at Humhama in 2010, it was a tactic suggestion that he might be released. Faktoo was, however, returned to the prison when the situation was improving after four month-long uprising.

Observing that life imprisonment means imprisonment for entire life, the judge held that the judgment was passed ‘in light of the law laid down by the judgments of the Supreme Court and other courts’.

The Supreme Court on Thursday said the life imprisonment implies a jail term till the end of convict’s life, and it is not limited to merely 14 or 20 years, which is a misconception, the Supreme Court held in a ruling on Nov 22, 2012.

“It appears to us there is a misconception that a prisoner serving a life sentence has an indefeasible right to be released on completion of either 14 years or 20 years imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate government,” said a bench of justices K S Radhakrishnan and Madan B Lokur.

The bench clarified that under remission, the appropriate government cannot reduce the period of sentence less than 14 years. “In the case of a convict undergoing life imprisonment, he will be in custody for an indeterminate period. Therefore, remissions earned by or awarded to such a life convict are only notional. In his case, to reduce the period of incarceration, a specific order under Section 432 of the CrPC will have to be passed by the appropriate government. However, the reduced period cannot be less than 14 years as per Section 433-A of the CrPC,” the apex court said.

The J&K High Court ruling referred to the judgment in Ajay Sharma v/s State of J&K & others, 1995 SLJ 178 and Laxman Naskar (Life Convict) v/s State of West Bengal, 2000 (7) SCC 626 in which it was held that life imprisonment means imprisonment for entire life.

The High Court also tried to pacify Mian Abdul Qayoom who appeared for the petitioner, Qasim, “Mr. Qayoom vehemently argued that in terms of Section 57 of RPC, life imprisonment means imprisonment for 20 years. But this argument is devoid of any force. The object of said section relates as to how to calculate the fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years, when punishment is to be awarded to a co-accused, who is also involved in the same offence, either by abetment, conspiracy or attempt, in which the main accused is awarded the sentence of imprisonment for life”. —

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