Spy shadow over India-Pakistan ties: A kangaroo court and giant leap backward

Dark clouds are once again hovering over the future of already strained relations between India and Pakistan, following a Pakistani military court’s handing out death sentence to Indian national Kulbhushan Jadhav on the charge of espionage and India’s sharp reaction to it. But more importantly, the international community is outraged by the court ruling which did not follow any norms of a fair trial and any law giving chance to Mr Jadhav, a former Indian Navy commander, for self-defence.

‘Pre-meditated murder’

Pakistan says it had captured Mr Jadhav, 46, in Balochistan on March 3, 2016 on the charge of espionage. India refuted the charge and hit back with political parties cutting across the ideological spectrum condemning the Pakistani court’s ruling and External Affairs Minister Sushma Swaraj telling parliament that New Delhi would consider execution of Mr Jadhav as a “pre-meditated murder.” India’s Foreign Secretary S. Jaishankar summoned Pakistan’s High Commissioner to India, Abdul Basit, and issued a demarche in which he said that Mr Jadhav was kidnapped last year from Iran and there had not been a credible explanation for his subsequent presence in Pakistan.

The court verdict comes four months after Sartaj Aziz, Advisor to Pakistan’s Prime Minister Nawaz Sharif on foreign affairs, told the Pakistan Senate in December last year that “the dossier” against Mr Jadhav contained “mere statements” and no “conclusive evidence”. Iran too has confirmed that he was on its territory but wasn’t engaged in any “illegal activity.” Germany and Afghanistan have supported New Delhi, while calling Pakistan’s version on Mr Jadhav as “fake”.

Pakistan fabrication machine

The whole episode raises several serious questions about Pakistan’s status as a law-abiding and civilized country. Mr Jadhav’s trial in a military court is a mockery of the due process of law and defies all cannons of natural justice. He never got a lawyer to present his case in the military court and all that used by Pakistani military authorities was a so-called “confession” by him. Even that “confession” is riddled with contradictions, which brings clearly that he was pressurized to make it. Secondly, Indian diplomats in Islamabad had for several months sought consular access, which is guaranteed under an international treaty, to Mr Jadhav but were denied. Thirdly, there is a big question mark on Pakistan authorities’ investigation into the Mr Jadhav’s case as they did not even produce the chargesheet against him. Pakistan also did not fulfil the fundamental tenet of law which requires a dossier to be made public against the accused. Fourthly, even if the “confession” was admissible in a court of law, there was little by way of corroborative evidence by Pakistan against Mr Jadhav.

The speed with which Mr Jadhav was tried in Pakistan is in sharp contrast Pakistan’s refusal to act against internationally-banned terrorists like Hafiz Saeed, the mastermind of the deadly 2008 terror attack in India’s financial hub Mumbai that left 166 people dead, and Masood Azhar. International human rights agencies and legal experts have criticised the Pakistani military court’s ruling and the trial process. Ever since 2015, when Pakistan empowered military courts to try civilians for terrorism-related offences, at least 161 death sentences have been handed down, in some cases, to children, in closed-door trials. In a severe indictment of Pakistan, the International Commission for Jurists said in a study that these military courts had kept secret even basic information on “the specific charges and evidence against the convicts as well as the judgments of [the] military courts, including the essential findings, legal reasoning, and evidence”.

India warns of serious consequences

All these lacunae were pointed out by Mrs Swaraj in her speech in the Indian parliament where she warned Pakistan of considering “the consequences for our bilateral relationship if they proceed on this matter.” She made it clear that India will leave no stone unturned in ensuring that Mr Jadhav got justice as he was engaged in legitimate business in Iran when he was “abducted and taken” to Pakistan. She said there was no evidence of any wrongdoing by him, and that the Indian High Commission in Islamabad had “continuously pressed” Pakistani authorities for consular access to Jadhav from the time “but to no avail in blatant violation of international laws and norms.”

The court’s ruling against Mr Jadhav has already once again challenged India-Pakistan ties, which are already at its nadir since the terror attack on an Indian Air Force base in Pathankot, close to the border with that country. On April 10, India decided to put on hold the release about a dozen Pakistani prisoners who were to be repatriated on April 12.

India’s options

Officially, India said that Pakistan, through the military court ruling, was seeking to divert attention from the worldwide condemnation of track record on backing terrorism. “If anything, he is the victim of a plan that seeks to cast aspersions on India to deflect international attention from Pakistan’s well-known record of sponsoring and supporting terrorism,” Mrs Swaraj said. What she did not say is that it shows Pakistan’s desperation to pressure into resuming the bilateral dialogue process that was called off by India after the Pathankot attack in January 2016. While Pakistan must ask itself whether the Jadhav case has covered itself with glory or discredited it before the world as a failed democracy.

India must immediately adopt a two-pronged strategy: bearing down on Pakistan to refrain from carrying out the death sentence and launching a diplomatic campaign to highlight the flawed trial process in Pakistan. The Jadhav trial has once again driven home the point that it does not always require a major terror attack in India to jeopardize India-Pakistan ties.

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