Kulbhushan
Jadhav, the former Indian naval officer, given death sentence by a military
court, is a pawn being used by Pakistan to strengthen its case against India
By Col
R Hariharan
The death sentence handed out
to Kulbhushan Jadhav, a retired Indian naval officer, by a Pakistan Field
General Court Martial (FCGM) on charges of spying and sabotage activities in
Karachi and Balochistan has sent shock waves across the country. Even the staid
Karachi newspaper Dawn, not usually given to hyperbole called the death
sentence “unexpected,” while reporting the political reaction to the sentence.
According
to Pakistan, Jadhav was arrested during a counter intelligence raid by security
forces near the border area of Chaman in Balochistan when he illegally entered
from Iran on March 3, 2016. He was using an Indian passport in the name of
Mubarak Patel.
He was tried
under Section 59 of the Pakistan Army Act and Section 3 of the Official Secrets Act of 1923, charged with
spying for India, working against Pakistan’s integrity, sponsoring Balochi
terrorism in the country and attempting to destabilise the state.
India
has clarified that Jadhav, prematurely retired from the navy in 2003, had
established a cargo business in Chabahar port in Iran since then. Media reports have alleged that he was
kidnapped from Iran by Taliban and sold to Pakistan authorities.
The entire prosecution and
trial process, starting from the arrest of Kulbhushan to the trial and award of
death sentence by a military court, has been shrouded in secrecy. The legality
of the trial by military court itself is questionable. In January 2015, Pakistan
national assembly reluctantly approved the 21st constitutional
amendment that paved way for the military courts, after the then Army chief
General Raheel Sharif pressurized the members. They are a testimony to the hold
Pakistan army has over the civilian authorities.
Pakistan Supreme Court ruled in
August 2015 that secret military courts were legal and could pass death
sentences on civilians. Nine military courts have been constituted to try such
cases. By end December 2016, the military courts have handed out death sentence
to 161 persons accused of terrorism.
Pakistan’s case is built upon information
gleaned from his interrogation and on the basis of Jadhav’s “video confession”
recounting his work for India’s external intelligence arm - the Research and
Analysis Wing (RAW) from 2013. The dubious “confession” from Uzair Baloch, a
notorious Lyari criminal gang leader of Karachi, who was apprehended by the
Rangers in Karachi in January 2016, stating that he was in contact with Jadhav
to create law and order situation in Karachi.
The Jadhav case appears to be tailored to prove
Pakistan’s claim of Indian involvement in three key areas: financial and
logistic support to Baloch insurgents, collusion with Haji Baloch, who provided
financial and logistic support to Baloch separatists and the Islamic State in
Karachi, and triggering sectarian violence in Karachi and Sindh.
Sartaj Aziz, advisor on foreign affairs to the
Pakistan prime minister, has said that Jadhav had been held responsible for
terrorist activities that include sponsoring attacks in Gwadar and Turbat,
attacks on a radar station and civilian boats in the sea opposite Jiwani Port, funding
subversive secessionist elements through hawala in Balochistan,
sponsoring explosions in gas pipelines and electric pylons in Sibi and Sui
areas in Balochistan, sponsoring IED explosions in Quetta, sponsoring attacks
on Hazaras in Quetta and Shias en route to Iran and back, and abetting
anti-state elements in attacks against law enforcement agencies in Balochistan
during 2014-15 killing many civilians and soldiers.
The Jadhav case has come handy for Pakistan, to
counter Prime Minister Narendra Modi’s efforts to internationally isolate
Pakistan for sponsoring terrorist attacks against India. In April 2016,
Pakistan briefed foreign diplomats in Islamabad on Jadhav’s arrest and his
involvement in terrorist activities. Pakistan also shared the information with
the US and the UK. Prime Minister Modi
in his Independence Day address on August 15, 2016 brought the focus on human
rights violations in Balochistan. The
Jadhav case would buttress Pakistan’s argument that India was colluding with
Balochi separatists in the state.
India has pointed out a lot of discrepancies in
Pakistan’s statement on the case. After
the death sentence was announced, India summoned Pakistan High Commissioner in
New Delhi and handed over a demarche. It said “If this sentence against an Indian
citizen, awarded without basic norms of law and justice, is carried out, the
government and the people of India will regard it as a case of premeditated
murder.” On April 14, India asked for a copy of the formal charge sheet filed
against Jadhav; Indian High Commissioner in Islamabad has also made a request
for consular access for the 14th time.
Jadhav has 40 days to file an appeal against the
FGCM verdict in the military court of appeal. If that fails, he would have the
opportunity to seek mercy from the army chief and Pakistan’s president. Of
course, if he feels the due process of law was not observed during the trial
and his fundamental rights were affected, he could approach a high court. But
the Lahore High Court Bar Association (LHCBA), on April 14, warned against
taking up the case of Jadhav. It said action would be taken against any lawyer
who dares to obey its order.
Army channels of appeal are unlikely to be
productive if we go by the statements of Pakistan army chief. The corps commanders’ conference, the Deep
State of Pakistan, has unanimously maintained that no compromise would be made
on the death sentence awarded to Kulbhushan Yadav.
Presumably, the only way to save to Jadhav would
be through bilateral parleys. But given the dismal state of relations between
the two countries at present, it could be a long haul before the contentious
issue is resolved.
Will it be possible to swap Jadhav for a Pak spy
as Gary Powers, the US air force spy pilot shot down over Soviet Union, was
exchanged for the Soviet spy Col Abel who was arrested in the U.S.? The
disappearance of Lt Col Muhammad Habib Zahir, a retired officer of the Pakistan
army, while visiting Lumbini in Nepal, recently has given rise to a lot of
media speculation that Indian intelligence might have kidnapped him for a trade
off for Jadhav.
International espionage cases are always murky
and messy because they are full of half truths and lies. Only the coming days
will tell how both India and Pakistan tackle this issue. The defusing of a
potentially explosive issue is likely to test the leadership skills in both the
countries.
Col R Hariharan, a retired MI
officer, served as the head of Intelligence of the Indian Peace Keeping Force
from 1987 to 90. He is associated with the Chennai Centre for China Studies.
Courtesy:
India Legal, Vol X. Issue. 23 April 24,
2017 http://www.indialegallive.com/
2 comments:
The question however, is whether Yadav will really be executed. Pak may stage his execution and then try and extract information from him. What they would do to him to extract that info, won't be pretty. In this context, Mr. Yadav's knowledge about India's operations in Balochistan / Afghanistan, becomes a matter of serious concern. Hopefully, there will be some resolution in the coming days. Thanks for the informative article.
Warm regards,
Dear Sir
Can I have your E mail id please.
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