ASHIQ HUSSAIN FAKTOO Vs. UNION OF INDIA

JUDGEMENT

(1.) THE dark clouds of terrorism have been haunting the valley since 1989. The first victim of terrorists' violence was Tikka Lal Taploo, a practising lawyer who was shot dead near his house in September 1989. The militants again struck soon thereafter when Late Shri Neel Kanth Ganjoo a retired member of Higher Judicial Service having lucrative practice at the bar was shot dead in broad day light. As if this was not a sufficient warning, the militants shot dead Shri Prem Nath Bhat, a leading Advocate of Anantnag in December 1989. The Newspaper reports of the time indicated that while Shri Taploo was killed for his political idealogy as he was a leading Member of Bhartiya Janta Party, Shri Ganjoo had to die for being the trial Judge who convicted Maqbool Bhat and Shri Prem Nath Bhat for writing against Fundamentalism. However, what followed thereafter proved that it was not the end but only beginning of the terrorism which later engulfed the entire valley as a consequence of which a huge majority of minority community fled from the valley and took shelter in the migrant camps. The terrorism let loose by the militants has not only taken heavy toll of life besides destruction of public and private property, but also shaken the very foundation of secularism for which State of Jammu and Kashmir stood. It has virtually destroyed the composite culture for which the valley was known throughout the world over. However despite countless killings and migration of more than two third of Kashmiri Pandits community from the valley there were some who preferred to stay on hoping against hope that sanity will prevail and secularism will survive the assault of the militant organizations.

(2.) IT was this hope which persuaded Late Hirday Nath Wanchoo, a resident of Jawahar Nagar (Srinagar) to stay back. It appears he had decided to prefer death to migration though he was not alone as a few more families continued to stay in the valley though at different places and for different reasons.

(3.) THE petitioner challenges his prosecution on the ground (i) that application of Terrorist and Disruptive Activities Act to the State ultra -vires the constitution, (ii) that the Terrorist and Disruptive Activities Act having lapsed and there being no saving clause notification issued under Section 9 of TADA to establish designated courts has also lapsed and, therefore, the designated court has no jurisdiction to try the petitioner, (iii) that conflict between Section 12 of TADA and Section 5 of the Code of Criminal Procedure cannot be satisfactorily resolved.