A military court in Pakistan has sentenced an Indian national and former Navy officer Kulbhushan Jadhav to death on charges of being a RAW agent involved in “espionage and sabotage activities.” The trial, however, appears to have been a blatant travesty of justice. There is absolutely no evidence against Jadhav barring a videotaped custodial confession which was released publicly by Pakistan. Nor further evidence has been made public. The trial was conducted in a military rather than regular court, further shrouding other proceedings in secrecy.
In December 2016, Pakistan Prime Minister’s Advisor on Foreign Affairs Sartaj Aziz admitted to the Pakistan Senate that his government was presented with only “insufficient evidence” on Jadhav. In April, after Jadhav was sentenced to death, however, Aziz declared that his “sentence is based on credible, specific evidence proving his involvement in espionage and terrorist activities in Pakistan.” Aziz claimed that Jadhav was “part of sabotage and terrorism in which civilians and security personnel were killed” and that he orchestrated attacks against minority Shia Hazara community in Quetta. The evidence in December 2016 and April 2017 is the same – but in the Pakistan Government’s discourse, Jadhav has shifted from being a suspect against whom there was flimsy evidence, to a mastermind of terror attacks. This in itself is baffling.
Moreover, the claims of “free and fair trail” fall apart when we consider that the Indian government sought – and was denied – consular access to Kulbhushan Jadhav 14 times. The right to consular access, and to provide legal representation for nationals, is guaranteed under Article 36(1)(c) of the Vienna Convention on Consular Relations, 1963, to which both India and Pakistan are parties. Why then did Pakistan deny this basic right?
The manner in which the Jadhav case is unfolding has a dangerous familiarity to it. Just as India’s Bar Associations often take up a jingoist and anti-democratic position warning lawyers not to take up cases of terror-accused persons, the Lahore High Court Bar Association has warned lawyers against taking up Jadhav’s case. This jeopardizes Jadhav’s right to appeal.
Indians are rightly outraged over the death sentence to Jadhav and are agitating for clemency for Jadhav. But our protests must go beyond competitive jingoism and Pakistan-bashing. We must recognize that Jadhav is a hapless victim of the same jingoistic and anti-democratic climate that we often witness in India, where hatred and prejudice are stoked against the democratic rights of persons suspected, accused or convicted in terror cases. If we oppose such a climate in Pakistan, surely we should oppose such a climate in India as well?
Are we, rightly, outraged at the flavour of mob justice emanating from Jadhav’s trial? In India, too, it is enough to accuse a man of being a terrorist or a Pakistani spy, for a mob frenzy to take over all concerns of due process, fair trial, appeals against convictions and so on. The dominant sentiment, in Pakistan and India both, is that a suspected agent or terrorist of the rival country does not deserve any rights, due process, fair trial etc. This is the kind of climate that led to the horrific incident in September 2015 in Kanpur, where an unidentified Muslim man was lynched to death by a mob because it was rumoured that he was a ‘Pakistani ISI spy.’ This is the climate which leads to hate-filled campaigns against Indian citizens raising questions against the death sentence to Yakub Memon or Afzal Guru.
Notably, it is those who raise human rights concerns and oppose the death penalty in India, who have also raised their voice most consistently for Kulbhushan Jadhav. Civil liberties lawyer Yug Chaudhry who had drafted a mercy petition signed by several citizens to the President of India against the death sentence for Ajmal Kasab, has sent a mercy petition to the President of Pakistan demanding clemency for Jadhav. CPI(ML) leader Kavita Krishnan has also begun a public petition addressed to Pakistan High Commissioner demanding clemency for Jadhav.
Given that Pakistan is in violation of several norms of international law, including the norm that spies are never executed in peace time, India has a strong case to take Pakistan to the International Court of Justice (ICJ). Why is India hesitating so far to do so? It is obvious that Jadhav cannot be saved just by big-mouthed talk by Indian Government Ministers. If the Government is serious about saving Jadhav, it should lose no time in approaching the ICJ to challenge the conviction and death sentence to Jadhav.
Jadhav’s family and the Indian Government have both denied that Jadhav is a spy. The fact remains that Indian spies arrested in Pakistan are subjected to tortures, treated shabbily and receive little recognition or compensation when they return home. Our concern should not stop with Jadhav – we should be concerned about the Indian and Pakistani nationals stranded in each others’ jails. We should be concerned to stop the inhuman and illegal methods of torture that are widely used in both countries.