To the surprise of everyone in the courtroom, terrorist leader Yasin Malik walked into the Supreme Court on Friday without the court's permission and created a flutter in the packed hall.
Malik, the chief of Jammu Kashmir Liberation Front (JKLF), is serving a life term in a terror funding case in Delhi's Tihar Jail. He has dozens of pending cases against him, ranging from abduction to murder, including the well-known cases of murder of Indian Air Force (IAF) personnel in Srinagar and the abduction of Rubaiya Sayeed.
Solicitor General of India Tushar Mehta wrote to Union Home Secretary Ajay Kumar Bhalla and flagged the incident as "serious security lapse".
Malik appeared in the court when the SC bench of Justices Surya Kant and Dipankar Datta was hearing a Central Bureau of Investigation (CBI) appeal against the September 20, 2022 order of a trial court in Jammu in the 1989 kidnapping case of Rubaiya, the daughter of then-Union Home Minister Mufti Mohammad Sayeed, allowing Malik to personally appear in court and cross-examine the witnesses, reported PTI, adding that the CBI had told the court that Malik was a threat to national security and cannot be allowed to be taken outside the Tihar jail premises.
Malik was produced in the court by jail authorities as they likely misinterpreted an earlier court order, reported PTI. Mehta highlighted that there is a Ministry of Home Affairs (MHA) order that prevents authorities from taking Malik out of jail.
Visuals of Malik arriving at the Supreme Court premises in an armed police escort were shared by media.
Misunderstanding led to Malik's appearance in SC: Report
Voicing surprise at his presence, Mehta told a bench of Justices Surya Kant and Dipankar Datta that there was a procedure for high-risk convicts to be allowed into the courtroom to argue their case personally, according to PTI.
The Supreme Court had on April 24 issued notices on CBI's appeal, following which Malik wrote a letter to the registrar of the Supreme Court on May 26 seeking permission to appear in person to plead his case, following which an assistant registrar took up his request on July 18 and said the apex court would pass necessary orders, reported PTI, adding that this was apparently misconstrued by Tihar jail authorities as saying that Malik had to be presented before SC to argue his case.
The SC bench also said that it had not granted permission for Malik's production in the court.
"When Mehta pointed at Malik's presence in the courtroom, the bench said it had not granted him permission or passed any order allowing him to argue his case in person. Justice Kant said Justice Datta has recused himself from the matter and it will now be placed before Chief Justice D Y Chandrachud for listing it before an appropriate bench. Justice Datta did not give any reason for recusing himself from the case," reported PTI.
SG Tushar Mehta writes to Home Secretary, flags security lapse
Mehta termed the incident a "heavy security lapse" and wrote to the Union Home Secretary about the incident.
"It is a heavy security issue. He (Malik) has been brought to court because of callous approach of jail authorities and necessary steps will be taken to ensure this does not happen in future. He is a national threat. He is a huge security threat to others," Mehta said, reported PTI, adding that he said Malik was brought to the court due to "misinterpretation" of some order.
"It is my firm view that this is serious security lapse. A person with terrorist and secessionist background like Yasin Malik who is not only a convict in terror funding case but has known connections with terror organisations in Pakistan could have escaped, could have been forcibly taken away or could have been killed," Mehta wrote to the Home Secretary, as per PTI, adding that even the security of the Supreme Court would have been put to a serious risk if any untoward incident were to happen.
"In any view of the matter so long as the order under section 268 of CrP Code subsists, jail authorities had no power to bring him out of jail premises nor did they have any reason to do so," he said, adding, "I consider this to be a matter serious enough to once again bring it to your personal notice so that suitable action/steps can be taken at your end."
Additional Solicitor General SV Raju, who also appeared for the CBI, said the court may clarify and pass necessary orders to ensure such an incident doesn't happen again, reported PTI.
After Kant said in-person argument by an accused was not a problem anymore with the apex court allowing virtual hearing these days, Mehta contended the CBI was ready to allow Malik to argue via video conference but he was refusing to appear virtually, reported PTI.
Mehta referred to the CBI's contention in its appeal against the trial court order to bring Malik to Jammu for in-person examination of the witnesses in the Rubaiya Sayeed kidnapping case, and said under section 268 of the CrPC a state government may direct certain people to not be shifted from the confines of a prison, reported PTI.
The SC bench then asked Mehta to present his arguments before another bench that will be constituted after Datta's recusal, and listed the matter after four weeks.
What's the case about?
On September 20, 2022, a special TADA court in Jammu had directed that Malik be produced before it physically on the next date of hearing so he can be given an opportunity to cross examine the prosecution witnesses in the Rubaiya Sayeed kidnapping case, pertaining to the abduction of Sayeed in 1989. She was eventually freed in lieu of five terrorists' release.
The CBI challenged the Jammu court's order of the trial court directly before the Supreme Court as appeals in TADA cases can only be heard in the top court.
Rubaiya was abducted by armed terrorists on December 8, 1989 at around 3:45 pm in Srinagar, when she was returning to her home from Lal Ded Memorial Hospital where she was a medical intern. Her father Mufti Mohammed had taken over as the Union Home Minister just six days back.
The JKLF claimed the abduction and demanded the release of five terrorists for her release — Abdul Hamid Sheikh, Sher Khan, Noor Mohammad Kalwal, Altaf Ahemed and Javed Ahemed Jargar. The terrorists were eventually released and Rubaiya was freed, despite opposition from the-then J&K Chief Minister Farooq Abdullah.
The episode is considered one of the turning points of Kashmir and reports from the time say that lakhs of people came out in the streets at the time in support of the terrorists.
Journalist Aasha Khosa told Rediff News, "There was no sympathy for Rubaiya. The people were all with the militants."
Khosa said the outburst on streets drove home the popular support for militancy.
She said, "The kidnapping was a shock. The security personnel did not have a clue. Till then everyone was treating militancy as a joke. People used to say, 'hey, my cousin has become a militant, he has a gun now'. The Rubaiya episode changed all that. It made people realise that there was major trouble in Kashmir. When the militants were released, there was celebration all around. I have never seen so many people on the streets! They sang, danced and raised anti-India slogans."
Delhi Prisons Department says 'prima facie lapse', orders probe
After drawing flak for producing Malik in the Supreme Court without any order or permission, the Delhi Prisons Department said it was a "prima facie lapse" and ordered an inquiry.
Deputy Inspector General (Prisons-Headquarters) Rajiv Singh will conduct the inquiry to find out the lapse and fix the responsibility of erring officials and submit a report to the Director General (Prisons) within three days, according to an official statement cited by PTI.
In a statement, the Delhi Prisons Department said, "On Friday, Yasin Malik was produced physically in the Supreme Court by the officials of Central Jail number 7. Prima facie, the lapse was observed on the part of concerned jail officials.
"The Director General (Prisons) has ordered a detailed inquiry in the matter to be conducted by Deputy Inspector General (Headquarters) (Prisons) Rajiv Singh to find out the lapse and fix the responsibility of erring officials. The report will be submitted within three days to DG Prisons," it added, as per PTI.
