Panellists on the recent India legal show discussed the options available at hand
The death sentence awarded to former naval officer Kulbhushan Jadhav by a military court (in a FGCM) in Pakistan on charges of espionage and fomenting terror has grabbed national headlines and brought relations between India and Pakistan to a new low.
While Pakistan, as of now, has adopted a belligerent stand, sticking to the charges levelled against Jadhav, India feels that the charges are baseless and the verdict by the FGCM is unacceptable and unfair as the officer was captured by deceit from Iran (by Taliban) and framed by ISI.
India has already taken a very strong stance on the issue and warned Pakistan of dire consequences if it executes the capital punishment. It believes that it will be nothing but a “pre-meditated murder”. It is planning to seek consular access to Jadhav.
So, is there a way out of this cul-de-sac as Pakistan refuses to relent or review the verdict? Will India be able to succeed in its efforts? What are the legal options available for India?
The recent India Legal Show sought answers to these questions. The guests on the panel included Amarendra Sharan, senior advocate, Supreme Court; Pradeep Rai, senior advocate, Supreme Court; Rupinder Singh Suri, president, Supreme Court Bar Association; Salman Haidar, former Indian Foreign Secretary; Bhim Singh, advocate and leader of Panthers Party (who will move the Supreme Court of Pakistan with a petition against the death sentence); IB Singh, senior advocate, Allahabad High Court; Nafis Siddiqui, advocate, Supreme Court (who fought the Bhagat Singh “re-trial” in Pakistan in 2015-16); and Qamar Agha, senior journalist and a foreign policy expert, among others. The show also sought reactions from the people in Pakistan on the matter. Excerpts from the discussion:
Amarendra Sharan: “Every aspect of law has been violated in this matter. Jadhav was kidnapped from Iran, he was tried secretly in a military court, nobody knows about the facts of the case, he was denied an opportunity to cross examine his witnesses, we do not still know what are the charges against him and so on. It is a case of “mistrial”, “illegal” and as our prime minister rightly said, a case of cold blooded murder. The issue should be fought legally, diplomatically and politically.”
Pradeep Rai: “One has to understand that the courts in Pakistan are unlike courts in India. It is the Army that rules the roost in that country; it is above any democratic or judicial process. The prime minister of that country can’t continue in office if the Army does not want. Look what they did with the two Sufi clerics from Delhi’s Nizamuddin dargah. They were arrested on charges of espionage and finally after many days were let off after active intervention from the Indian foreign minister.
“I think in the present circumstances, India should issue and advisory that no citizen should venture into Pakistan at any cost,” said Rai.
“Today, India has exposed Pakistan at every international fora and it is not being heard anywhere. As a result, Pakistan is trying to hit back. If it thinks that Jadhav is a RAW agent it should lodge its protest with the Indian government. Nobody is aware of the chargesheet, the statement given by Jadhav.
“India went for a proper and transparent trial in the case of Ajmal Kasab despite all evidences available with the government on videos, despite so many Indians being killed. Pakistan should stop testing India’s patience and keep all channels of talks open,” said Rai.
“I recall Pakistan’s former Army chief General Musharaff saying to me in Dubai sometime back that even if he is arrested after going back to Pakistan, the courts and the government won’t dare to punish him. Such is the power of the Army in Pakistan.”
Rupinder Singh Suri: “An accused has the fundamental right to seek a lawyer to defend himself (which was denied to Jadhav). In India, the Supreme Court appointed senior counsel Raju Ramachandran as the amicus curiae to defend Kasab, despite it being an open and shut case. Often questions were raised on the basis of the trial when it was more than obvious that Kasab and his men had killed so many people.
“If Jadhav was a spy why would he carry an Indian passport? He has been accused of many activities like IED and grenade attacks, attacks on radar stations and civilian boats, subversive activities, hawala payments, sponsored explosions of gas pipelines, etc. It is unbelievable that all these were done by a single person. Is he a superhuman being? And if other people were involved as abettors, where they tried? We have no information,” said Suri.
“The case went through only three hearings and the verdict was given within three months. Now Jadhav has three options: appeal against the verdict within 40 days, seek clemency from the Army chief within 60 days, and from the president within 90 days.
“India will have problems raking up the issue at the international level because as a policy we have avoided that as far as matters related to Pakistan are concerned.”
Salman Haider: “It is a grave wrong done by Pakistan. The way they have treated Jadhav is reprehensible. India should use all means to ensure that the sentence is not carried out and Jadhav is brought back. This is the first and foremost requirement.
“Secondly, we should continue our dialogue with Pakistan which has come to a halt.”
Dalbir Kaur (who fought for her brother Sarabjit Singh. He died in a Pakistan jail in 2013). “The two cases are similar. India should have taken on Pakistan head on long ago and such a situation could be avoided.”
Amarendra Sharan: “India should file an appeal and I request Mr Suri to get in touch with Ms Asma Jahangir, president of the Supreme Court Bar Association of Pakistan and ensure that a team of lawyers defend Jadhav. The judges of the Pakistan Supreme Court are credible enough to approach. Then there is the scope for clemency.”
Rupinder Singh Suri: “I will definitely try. But the recent media reports saying that the Lahore High Court has passed a resolution that they will not allow any lawyer to present jadhav is quite disconcerting. The Bar associations in Pakistan have struggled to bring in judicial supremacy.
“Article 14 of International Covenant on Civil and Political Right guarantees fair trial. Article 36 guarantees counselor access. The entire case is hinged on a single confession, which everybody knows is not difficult to extract.”
Bhim Singh: “By no legal account can Jadhav be tried in a military court. We have tried to contact through email the concerned authorities, defense ministry asking them to send us a copy of the order of the court martial.”
Nafis Siddiqui: “It is believed that a section of lawyers have taken the initiative in the Jadhav case. But they have not been asked by the government to do so. However, the Supreme Court has no powers to entertain an appeal in this regard directly. It must come through proper channel which includes the Army.”
Qamar Agha: “The timing of the issue is important. It was created when a positive climate was in the offing to hold bilateral talks. But now it seems Pakistan Army is not intent on talks. The new Army chief may want it personally, or even the civilian government.”
Amarendra Sharan: “In that case India can resort to many overt and covert ways. It can adopt punitive measures. We can remove Pakistan from the status of a Favoured Nation. We can ensure that Pakistan suffers loses in trade.”
Rupinder Singh Suri: “We will have to fight so that such a scenario doesn’t recur. The civil society will have to come out and show their responsibility, prove their credibility.”
For further details, see the video:
—compiled and translated by India Legal Bureau