Saving Kulbhushan Jadhav

The April 10 revelation of the death sentence for former retired Indian naval officer Kulbhushan Jadhav by the military court of Pakistan brings back a feeling of déjà vu.

Apart from a plethora of unanswered questions surrounding the imbroglio and the mysterious arrest, the blatant travesty of justice being meted out to him is reminiscent of what happened to Sarabjit Singh.

An eerie reality that is slowly emerging in this case is that India is as helpless now as it was in 1991 when Singh was given the death sentence by Supreme Court of Pakistan and was eventually killed brutally by jail inmates in 2013. This despite the fact that Singh maintained till the very last day that he was a farmer who had accidentally crossed over the border. Jadhav is in a riskier position because he is believed to have confessed, albeit under duress, before a magistrate and the court that he was tasked by R&AW to plan, coordinate and organise espionage and sabotage activities aimed at destabilising Pakistan and waging war against it.

Therefore, the question is what options can India exercise to ensure that Jadhav is given a fair trial and subsequently brought back home? Jadhav has been tried by Field General Court Martial (FGCM) under section 59 of the Pakistan Army Act (PAA) 1952 and Section 3 of the Official Secrets Act of 1923. The Indian government has said it will decide the next course of action after reading the PAA thoroughly, which essentially implies that India is still unaware of any hidden provisions.

The Government has already made 14 requests to the Pakistani authorities for consular access to Jadhav. All have been rejected. In any case, it was naive to assume that India’s access would be honoured.

However, it should be noted that under Article 6 of the Agreement on Consular Access between India and Pakistan signed on May 21, 2008 Pakistan is really not compelled to give consular access to India. Article 6 of the agreement categorically states: “In case of arrest, detention or sentence made on Political or Security grounds, each side may examine the case on its merit.” In other words, in cases where the country’s security is concerned, a person can be tried just based on the merit of the case.

Meanwhile, the foreign affairs advisor to Pakistan’s Prime Minister Nawaz Sharif and their top strategist Sartaj Aziz has given a statement on Jadhav’s alleged terrorist activities that has left everyone flummoxed. If his locution is to be believed then Jadhav is nothing short of a “super spy”, in the words of a former R&AW director. According to Aziz’s exhaustive list, Jadhav carried out at least seven large-scale terrorist activities on Pakistani soil which includes IED and grenade attacks in Gwadar and Turbat regions of Balochistan, massive explosions in Quetta and gas pipeline explosions in Balochistan. This is the same Aziz who, on December 2016, had informed the Pakistani senate that Pakistan had no concrete evidence against Jadhav.

Interestingly, it should be remembered that spies are executed only during war and not during peace times. India and Pakistan may be passing through a period of high-pitched geopolitical tension, but they are certainly not at war with each other, and neither should they be. And it is common knowledge that the system of court martial used by the Army to bring discipline in its ranks is rarely used against civilians.

India, meanwhile, has been screaming that Pakistan has violated international law on this matter but it remains a mystery why it cannot drag its neighbour to the International Court of Justice (ICJ). Perhaps this is because India has always believed in handling issues with Pakistan bilaterally rather than multilaterally.

If whispers in the corridors of the ministry of external affairs are to be taken cognisance of and if off-record interactions with diplomats and former R&AW and Intelligence Bureau officers are to be believed, then this could well be Pakistan’s tactic to make India utter the menacing ‘K’ word. Pakistan has been seeking to inflame the Kashmir issue ever since India stalled resumption of the Composite Bilateral Dialogue following the attacks on Pathankot Air Force base in January last year.

Interestingly, Iran’s silence is deafening, given its friendly geopolitical and business ties with India. If Jadhav was apprehended in Chabahar, from where he was supposedly taken to Pakistan, then Iran has lots to answer for.

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