No Law On Earth Can Justify Kulbhushan Jadhav’s Hanging

No law on earth can justify Kulbhushan Jadhav’s hanging on “whimsical, arbitrary and illogical” grounds. Pakistan is just using a retired naval officer, who was doing business, to hugely embarrass India by projecting him as a serving officer, who was indulging in acts of terror in Pakistan. It is outright most blatant violation of all canons of justice and can never be justified under any circumstances. It is not for nothing that lawyers of India all over the country at the call of the Bar Council of India observed one day of protest against the death sentence meted out to Jadhav without following the “due procedure of law”.

Let it be recalled here that on April 10, 2017, Pakistan announced that it would execute Kulbhushan Jadhav, who was a retired naval commande, supposedly arrested in Balochistan on March 3, 2016, and charged with spying. According to a Pakistani military press release, Pakistani Army Chief General Qamar Javed Bajwa confirmed Jadhav’s death sentence handed down for alleged “involvement in espionage and sabotage activities”. This is most outrageous and unacceptable as the death sentence has been pronounced without observing the basic norms of law and justice.

How can a civilian like Kulbhushan Jadhav be tried under military law and awarded death sentence by the Field General Court Martial? Needless to say, India has reacted very sharply and India’s External Affairs Ministry, while issuing a demarche to Pakistan’s High Commissioner in Delhi, described Jadhav’s trial as “farcical” and said “The sentence, if carried out, would be viewed as nothing short of premeditated murder”.  The External Affairs Ministry says Jadhav was kidnapped from Iran.

Be it noted, military law experts have raised many questions over the manner in which Jadhav’s trial was conducted. They point out that Jadhav’s court martial goes against the spirit of Article 14 of the International Covenant on Civil and Political Rights, which calls for trial under an independent court. A fair and public hearing by a competent, independent and impartial tribunal is ordained by Article 14. Major Navdeep Singh (retired), who is an expert in military law and is an advocate in the Punjab and Haryana High Court and founding President of the Armed Forces Tribunal Bar Association, is at pains to point out, “India does not try civilians in military courts. Even those facing charges of espionage are tried by our regular judiciary with the full rights available to any other citizen.” But see what has Pakistan done in case of Jadhav! Major Navdeep rightly points out, “Comparing Kasab’s case with Pakistan’s questionable Jadhav trial is difference between rule of law and rule of the jungle.”

To put things in perspective, Jadhav still has 40 days to appeal against the death sentence before Pakistan’s Army Chief and then approach Pakistan’s  President for pardon. It is a real travesty of justice that any real remedy to the superior civil judiciary is barred by Section 133 of the Pakistan Army Act (PAA), and a body of serving military officers headed usually by a Brigadier and constituted by Pakistan’s Chief of the Army Staff (Section 133BPAA), which examines the punishment, has been confirmed by the same chief!

No doubt, farcical would be much too light a word to use here and the right word would be “planned premeditated murder”.

It will certainly not be an exaggeration from any measure if one compares the judicial killing of Kulbhushan Jadhav with the killing of serving Indian military officers by Pakistani terrorists. Pakistan thinks that it can get away with it and India will take it just lying down as we saw after Kargil war when India decided to invite Pakistani invader Gen Pervez Musharraf, who himself boasted of entering 14-15 km inside Indian territory to boost his forces to mercilessly kill Indian soldiers and masterminded the whole operation and yet just two to three months after Kargil war a red carpet welcome was accorded to him! Just recently also, we saw how after Pathankot terror attack, in which we lost our Major and Colonel and many soldiers, the Centre decided to invite ISI agents to inspect the site, where terror attack was executed, thus making a complete mockery of our soldiers. We released more than 93,000 Pakistani prisoners of war (PoWs) even after winning the 1971 war but they did not release our 54 PoWs and they have been suffering untold torture for last many decades at the hands of Pakistani Army. But our Government has just ignored all this. This must end now. If soldiers are not respected and protected and instead Gen Musharraf and ISI is given preference, who would like to render supreme sacrifice for our  nation?

Why India has been unilaterally extending Most Favoured Nation status since 1996 to Pakistan even though it has unleashed proxy war against us for last more than four decades? Why no major political party comes forward in support to declare Pakistan a rogue state and a terror state when MP Rajeev Chandrashekhar decides to bring it as a private member’s bill in Parliament? Why India keeps taking repeated terror attacks lying down? Why can’t we boycott Pakistan completely? Politicians have a lot to answer on this, especially those who are in power at the Centre.

Anyway, coming back to the Jadhav issue, why has even consular access been denied to Jadhav? As per international norms, this is the very minimum requirement for a fair trial. Why has India requested over 14 times but Pakistan has still denied any consular access to him? Why was Indian High Commission in Islamabad not even informed that Jadhav was being brought to trial? Why was no Indian lawyer provided to Jadhav or even a lawyer of Pakistan provided to him? What has Pakistan got to hide? Why has it done everything in such a hush-hush manner?

It is most shocking to see that even the alleged confession video was appearing to be doctored and fake and was broken in parts. The video seemed poorly cut and several parts were spliced together. While in one part he says he retired in 2002 after the 2001 Parliament attack, later in the video he says he was due to retire in 2022. While he refers to ‘criminal activity’ in the country, he doesn’t elaborate on it.

There is no clear evidence of espionage plot. He must have been coerced and beaten brutally to extract forced confession from him. Jadhav, after retiring from Indian Navy in 2001, had left for Iran to start business at Chabahar free trade zone. It cannot be dismissed lightly that in December 2016, Pakistan Foreign Minister had himself said that there was insufficient evidence of Jadhav’s espionage activities. How strange that Pakistan claims that Jadhav would retire from Indian Navy in 2022 even though he had officially retired in 2001.

It is also now being reported widely that Kulbhushan was kidnapped from Western Balochistan near Chabahar port in Iran by three Afghans, who later sold him to some Baloch, who were working for the ISI. Actually Jadhav was in Iran on a business trip to inspect some possibilities to export Indian garments to Turkmenistan and other central Asian states. He was blind-folded and brought inside Pakistani-Occupied Balochistan and sold for US$ 35,000 to ISI. He was then shown as a RAW agent, captured in Balochistan, who was there to train and help Baloch and create instability in Pakistan.

As things stand, what a pity that Indian High Commissioner in Islamabad, Gautam Bambawale has met Pakistan Foreign Secretary Tehmina and asked for a certified copy of the chargesheet as well as the judgment on Jadhav but that too elicited no response. Even Pakistan People’s Party chief Bilal Bhutto has said that the matter is disputed, which cannot be dismissed lightly. If he was a spy then why was he carrying his own original passport? Why he did not use a fake one?

Truly speaking, Pakistan is trying to use all tricks to claim that he was a RAW agent but still is failing miserably. Why is even a lawyer being denied to Jadhav, which every accused has a right to get legal aid? Why are the lawyers of Lahore High Court threatening that if any lawyer dare defend Jadhav his/her licence to practice as an advocate  would be automatically terminated? It is because Pakistan has more to hide than reveal.

To put things in perspective, we also need to bear in mind that a court martial in Pakistan does not enjoy any independence. Major Navdeeep rightly points out, “The prosecuting agency, the prosecution, the defence members of the jury, convening and confirming authority and shockingly even the appellate body function under one agency, that is, the military, and it is all thoroughly delimited by command influence. While the civil judiciary would provide the full spectrum of rights and defence, examination of evidence, professional and a decision by a proper judge trained in law, over months or even years, all procedures are bypassed in a military trial and a non-challengeable verdict is handed out in a few minutes.”

Truth be told, Major Navdeep also rightly points out, “Beyond the merits and diplomatic aspects, what hurts is that Jadhav has not been convicted by a real court after a fair trial following proper principles of natural justice, representation and appreciation of evidence, but by a kangaroo military jury in a secret location without the benefit of a counsel with a trial lasting a few minutes based upon some doctored admission obtained in custody and through a confidential verdict and without any effective appellate process. But strangely such draconian provisions were upheld by the Supreme Court of Pakistan. But thankfully India is not alone in raising a voice against trial of civilians by military courts and Pakistan’s own civil society and legal fraternity have raised a red flag. It is admirable and encouraging that from what news reports suggest, the Supreme Court Bar Association of Pakistan is raising another challenge to this charade. May they succeed in humanizing their system and may we succeed in saving Jadhav.”

To say the least, politicians of India must now understand that they are too much tolerant of Pakistan. They hang our brave soldiers like Jadhav shall be, as is widely anticipated, yet our politicians are so shameless that they still favour in according MFN status to Pakistan. Politicians are certainly not on payroll of Pakistani Army or ISI or Pakistan itself then why are they so tolerant to them? Former Pakistan Ambassador to the US–Hussain Haqqani–has severely criticised the death sentence awarded to retired Indian navy officer Kulbhushan Jadhav, saying Islamabad’s “spy games” are making it tougher for the two South Asian neighbours to even explore peace.  Haqqani minced just no words in making it crystal clear that Jadhav’s conviction would have been more convincing, had it resulted from an open trial. There can be no denying it. “But as with much about Pakistan, the trial’s short and secretive timeline may have more to do with internal dynamics than with the merits of the case itself,” he wrote in an op-ed in The Wall Street Journal. Haqqani, who presently is the Director for South and Central Asia at the Hudson Institute, which is a top American think-tank, was forthright in admitting that putting an Indian on death row was an easy way to scuttle the momentum for new talks. The former Pakistani diplomat also alleged that Islamabad is unlikely to change its policy of using terrorists groups for its national security. Yet Pakistan instead is calling a retired Indian naval officer a spy and a terrorist. Isn’t it a theatre of the absurd?

How long will our politicians continue to believe in this charade of engaging Pakistan and maintaining good relations with Pakistan? How long will they ignore the daily killing of our brave soldiers? How long will they keep advocating of giving peace one more chance and continue trusting Pakistan in spite of being repeatedly backstabbed by them?  They must understand that clapping cannot be done with one hand alone and they, by crawling in front of Pakistan, only encourage them like Gen Musharraf to first wage Kargil war in which we officially lost more than 600 soldiers even though unofficially the figure is quite higher to be more aggressive against India and mock us from whichever platform they get.

Let me be direct in saying: India has repeatedly sought consular access to Jadhav, whom the Pakistani side claimed was travelling on an Indian passport issued in the name of Hussain Mubarak Patel but Islamabad just refused to accede to this demand without assigning any valid reasons. The Indian demarche also noted that New Delhi had made 13 formal requests for consular access to Jadhav between March 25, 2016 and March 31, 2017. There had been two requests using notes verbale in March 2016, then one each in May, June and July. Then there was a long gap, with the next note verbale sent to Pakistan in December 2016.

Also, a month later, India forwarded the same request again. On February 3, 2017, both the political and consular wings of the Indian High Commission in Islamabad sent separate requests to the Pakistan Ministry of Foreign Affairs for access to Jadhav. Exactly a month later, on March 3, the Ministry of External Affairs issued a demarche, whose reply was given by Pakistan on March 21. The last two requests for consular access were made on March 21 and April 3.

It is noteworthy that providing consular access to foreign citizens arrested or detained is a standard practice in international law. But Islamabad said it was not obligated to do so since Jadhav was accused of espionage. In fact, there is no carve out for persons arrested for spying in the Vienna Convention on Consular Relations, 1963, the basic document governing consular access in international law.

On a concluding note, it may be reiterated that India cannot be just a silent spectator to Jadhav’s cold blooded murder by Pakistan in near future. We have to act like a strong power. Blind appeasement of Pakistan must stop forthwith. Our priority should be our citizens like Kulbhushan Jadhav, who is also a retired naval officer. He had a valid passport with his own name. If he was a spy, why would he carry his own original passport with his original name. Here too Pakistan wrongly accuses him of using the name Mubarak Hussain Patel. India cannot allow his cold-blooded murder to be perpetrated by Pakistan with impunity and without any fear. India must act fast and start taking hard steps against Pakistan to make it realise that India means business. Only a strong political will is required. One fondly hopes  PM Narendra Modi will not found to be lacking on this count. He must make it absolutely clear that no law on earth can justify Kulbhushan Jadhav’s hanging and this is precisely the case also. It brooks no more delay. Subramanian Swamy has rightly said,“If Pakistan hangs Kulbhushan, India must declare Balochistan independent.”

By Sanjeev Sirohi