Jammu and Kashmir High Court: In an Letters Patent Appeal (LPA) challenging Kashmiri separatist & militant Ashiq Hussain Factoo’s conviction and writ petitions challenging Jammu & Kashmir Jail and Prison Manuals’ Rules as being unconstitutional and violative of Articles 14 and 21 of the Constitution of India, a Division bench of Sanjay Dhar* and M.A. Chowdhary, JJ., upheld the validity of the J&K Jail Manual’s rules, and held that the exclusion of terrorist crimes from remission justified and is in line with constitutional provisions. The Court dismissed the petitioners’ appeal and affirmed that the terrorist acts committed by the appellant and petitioner fell within the rules barring remission.
Factual Matrix
In the instant matter, the appellant was convicted under Section 302 of the Ranbir Penal Code (RPC), TADA Act, and Arms Act for his involvement in the murder of H.N. Wanchoo, a Kashmiri human rights lawyer, in 1992, an act to create terror among the minority community in Kashmir. Though initially acquitted by the Designated Court in 2001, the Supreme Court overturned this acquittal in 2003, convicting the appellant and sentencing him to life imprisonment. He has been in custody since 06-02-1993.
Similarly, the petitioner was also convicted under similar charges in connection with the murder of a BSF personnel, Dharamveer Sharma, in 1990. The Designated Court convicted him in December 2012, sentencing him to life imprisonment, with additional sentences under TADA and the Arms Act.
The appellant filed a Letters Patent Appeal (LPA) challenging a Single Judge of the Jammu & Kashmir High Court’s order that dismissed his petition seeking release after serving over 20 years in prison. His claim was rejected on the basis that life imprisonment equates to imprisonment for one’s natural life, not merely 20 years.
The appellant later filed a writ petition (WP(Crl) No.02/2024) challenging Rule 54.1 of the Manual for Superintendence and Management of Jails in the State of Jammu & Kashmir (J&K), 2000 which excludes prisoners convicted of offenses such as rape, dacoity, terrorism, corruption, and other serious crimes from consideration by the Review Board for remission. The petitioner filed a writ petition (WP(Crl) No.03/2024) challenging Rule 20.10 of the Prison Manual, 2022, which governs the superintendence and management of prisons in Jammu & Kashmir.
With the implementation of the Jammu & Kashmir Reorganization Act, 2019, the J&K Prisoners Act and Prisons Act were repealed, and the Central Prisons Act now applies to the Union Territory of Jammu & Kashmir. Both writ petitions were initially filed in the Supreme Court, but were remitted to the High Court for adjudication.
Moot Point
Whether the exclusion of certain categories of crimes, specifically terrorist crimes, from the purview of remission under the Jammu & Kashmir Jail and Prison Manuals is unconstitutional and violates Articles 14 and 21 of the Constitution?
Parties’ Contentions
The appellant and petitioner contended that the Rules excluding certain crimes from remission violate Articles 14 and 21 as they arbitrarily deprive prisoners convicted for terrorist crimes of their right to be considered for remission. It was contended that the Remission is part of the reformative sentencing policy, and categorically excluding offenses violates the prisoner’s inalienable right to be considered for release based on good behavior. It was asserted that exclusion of certain crimes from remission undermines the reformative approach of punishment, which aims to rehabilitate offenders. The petitioners relied on several precedents, including Joseph v. State of Kerala, 2023 SCC Online SC 1211 and A.G. Perarivalan v. State, (2023) 8 SCC 257, and argued that a blanket exclusion of crimes from remission is unconstitutional.
However, the State argued that it is within its rights to exclude certain heinous crimes from remission due to their gravity and impact on society. It was contended that the exclusion of crimes like terrorism from remission serves a legitimate public interest and does not violate the Constitution. The State relied on Union of India v. V. Sriharan, (2015) 14 SCC 409 and other precedents that upheld similar exclusions. The State further asserted that the classification of crimes for the purpose of remission is reasonable and serves the purpose of ensuring public safety and justice for victims.
Court’s Analysis
The Court relied on Gopal Vinayak Godse v. State of Maharashtra, 1961 SCC OnLine SC 70 and V. Sriharan, (Supra) and held that Life imprisonment, as defined by law, lasts for the convict’s natural life unless remitted by the appropriate government authority. The Court emphasised that administrative rules, such as those in the Jail Manual or the Prisoners Act, which might suggest life imprisonment equals 20 years, cannot override statutory provisions of the Penal Code, 1860 which clearly define life imprisonment as a natural life sentence.
The Court stated that the terrorist crimes, especially in Jammu and Kashmir, have had a significant adverse impact, including large-scale loss of lives and property. Given the prolonged history of militancy in the region, the Court deemed it reasonable to classify terrorist crimes separately and exclude them from remission. The Court held that this classification is neither arbitrary nor violates Article 14. The Court, though, acknowledged the petitioners’ concerns but upheld the State’s power to exclude certain crimes like terrorism from remission based on the unique socio-political context of Jammu and Kashmir.
The Court rejected the petitioners’ argument that denying remission to convicts with good behavior undermines the reformative aspect of sentencing, thereby violating Article 21 and countered that while Article 21 protects life and liberty, these rights can be lawfully curtailed following due process. The Court asserted that in the case of convicted terrorists, the reformative theory of punishment must take a back seat to public safety and deterrence until social conditions improve. The Court held that protecting public safety justifies keeping terrorists out of circulation. The Court referenced to V. Sriharan (Supra) and Maru Ram v. Union of India, (1981) 1 SCC 107, to highlight that the exclusion of terrorist crimes from remission is constitutionally valid.
“In the matter of heinous crimes like terrorist crimes, which has become not less than a menace for our country, the reformative theory of punishment has to take a back seat, at least till such time the social environment in our country improves and we have the adequate facilities of reformation of the prisoners in place.”
The Court held that the exclusion of terrorist crimes from the purview of remission under the J&K Jail Manual is valid and does not violate Articles 14 and 21. The Court also clarified that although statutory remission powers may be restricted, constitutional powers under Articles 72 and 161 (granting the President and Governors the ability to pardon or remit sentences) remain unaffected.
Court’s Decision
The Court held that —
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The LPA filed by the appellant against the impugned judgment dated 16-11-2012 is without any merit and the same is dismissed accordingly.
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The constitutional validity of impugned Rule 54.1 of the J&K Jail Manual (now repealed) and Rule 20.10 of the J&K Prison Manual, 2022, is upheld and the writ petitions are dismissed.
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It shall be open to the competent constitutional authorities to consider the cases of the petitioners for grant of remission in exercise of their powers under Articles 72 and 161 of the Constitution of India.
The Court dismissed both the LPA and the writ petitions and held that the appellant and the petitioner are not entitled to release merely because they had served 20 years.
[Ashiq Hussain Factoo v. State of J&K, 2024 SCC OnLine J&K 792, Decided on 27-09-2024]
*Judgment by Justice Sanjay Dhar
Advocates who appeared in this case :
Mr. Collin Gonsalves, Senior Advocate, with Ms. Mughda and M/S Ubaid Mir & Kamran Khawaja, Counsel for the Petitioners
Mr. Mohsin-ul-Showkat Qadri, Sr. AAG, with Ms. Maja Majeed and Ms. Nadiya Abdullah, Counsel for the Respondents
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