Last Monday, a military court sentenced Kulbhushan Sudhir Jadhav to death over spying for Indian intelligence agency Research and Analysis Wing (RAW) under Section 59 of Pakistan Army Act (PAA)-1952 and Section 3 of Official Secret Act of 1923.
Jadhav had confessed before a magistrate that RAW deployed him for espionage and sabotage, primarily targeting Balochistan. A confessional video had been jointly released by Pakistan’s civilian and military leadership on March 29, 2016.
Jadhav had reportedly been arrested on March 3 last year from Mashkel area of Balochistan. This area is the hub of a separatist insurgency in the province. Indian officials maintain that he is a retired Navy officer with no links to security agencies. They hold that his documents were fabricated to incriminate him as a RAW spy following, what the Indian authorities claim, was a forced confession.
The matter has since remained a case of Pakistan’s claims versus India’s — true for many of the conflicts between the two states.
However, by identifying the RAW officer he reports to as Anil Kumar Gupta, a joint secretary, Jadhav has not helped Islamabad’s case, for there is no such individual in the Indian intelligence agency. And while it is usual for both countries to detain individuals from the other side over espionage charges, the announcement of a death sentence to Jadhav might hinder diplomatic progress for India and Pakistan in the foreseeable future.
As far as Pakistan is concerned, the verdict has brought important issues into the limelight. Capital punishment was certainly going to spark outrage in India, with Minister of External Affairs Sushma Swaraj already having vowed to ‘go all out’ to save Jadhav. But Pakistan’s justice system has also come under scrutiny after Jadhav’s sentence.
Both Pakistan Army Act of 2017 and the 23rd Constitutional Amendment Bill were passed on March 31 for resumption of military courts in the country. Their two-year term had expired in January this year.
Rights groups have already condemned resumption of military courts. The International Commission of Jurists (ICJ) has claimed that “the government and military authorities have failed to make public information about the time and place of their trials; the specific charges and evidence against the convicts; as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based.”
The lack of transparency in military courts trials was a primary concern in debates among Pakistani legislators, ahead of the passing of the 23rd constitutional amendment. These debates had continued for almost three months.
Hence, even though the verdict itself would’ve sufficed in attracting Indian indignation, the fact that the sentence was given by a military court further aggravated the outcry.
The last two Indian spies to be sentenced to death by Pakistan were given punishments by civilian courts. In 1999, Sheikh Shamim was hanged to death, 10-years after he was caught spying near the border. Sarabjit Singh, whose biopic was released last year, was killed by inmates after spending 22-years in a Pakistani jail. Meanwhile, India maintains that it has never sentenced a Pakistani spy to death.
The blowback of Jadhav’s case on Indo-Pak relations is evident, especially considering what has transpired over the past 15 months. Bilateral relations have deteriorated following Indian Prime Minister’s much-documented stopover in Lahore on December 25, 2015. We have since witnessed the Pathankot attack, Jadhav’s arrest, Burhan Wani’s death in Indian-held Kashmir and ensuing deadly violence, and the Uri attack.
Furthermore, there is the issue of the popularity of the ruling BJP’s Hindutva vision, manifesting in the hardliner Yogi Adityanath becoming the UP Chief Minister. This rise of Hindu nationalism has, intriguingly, coincided with the ruling PML-N in Pakistan manifesting liberal ideals.
While Jadhav’s death sentence may not necessarily translate into execution, what makes the verdict particularly damaging is its timing. With Pakistan set to head to polls in around 12 months, the PML-N would not want to dent its evident popularity by appearing too soft on India.
And as anti-India rhetoric would be upped in Islamabad in the lead up to the elections, we can expect New Delhi to reciprocate as India holds its elections the following year (2019) and has major state elections before that. This effectively means that any progressive development on India-Pakistan ties isn’t possible till at least 2020, despite the parallel backchannel maneuvering that the states would be engaged in.
If the entire purpose of the military courts is serve ‘immediate’ justice, the longer Jadhav remains alive the more obvious a gimmick the verdict would get reduced to.
What would happen if the death penalty is carried out? If Jadhav is hanged, it would reaffirm that the Pakistani military establishment is still calling the shots at all possible levels, despite claims that there is a progressive Army Chief at the helm now. What that, in turn, would mean is continued confrontation and diplomatic trash talk with an India that is increasingly matching its heretofore radical neighbour.