Did India get the memo?
There are – despite the general opinion when it comes to judicial decisions and the penal code – laws in place, and standards of procedure
Here’s what happens when you confess under Section-164 of the Criminal Procedure Code.
Your handcuffs are removed. The police is sent out of the court room and you’re asked a series of questions to determine whether or not the confession you’re about to give is in any way the result of coercion. You’re given time – to think and to understand that while you’re not required to make a confession, it will be used against you and that you will be returned to police custody whether or not you make it. And then – and only then – can you be recorded.
It’s simple. For all intents and purposes, it’s fair. It’s what Kulbhushan Yadav experienced. A confession recorded under Section-164 is hardly inadmissible evidence – in fact it is solid evidence against the Indian spy – and it’s pretty much all that was needed to merit a sentence.
Apparently, India didn’t get the memo.
But then again, India’s response has hardly been that consistent since Commander Yadav first graced our scenes.
In 2016, when the Pakistanis were clamouring about an honest-to-God spy caught in Pakistan, India’s policy was deny, deny, deny. Not only did Commander Yadav no longer serve in the Indian Navy, but the country had no contact with him.
Then followed tall tales of kidnapping at the hands of the Taliban, perhaps to gain favour with Pakistan, Indian media speculated. Analysts are hardly surprised on that twist; since the Indian right-wing has long contended that Pakistan is a sponsor of terrorism, this would be an ideal opportunity to wag accusatory fingers.
Where was Yadav in the meanwhile?
That’s a good question. While one would see his video statements rehashed in the odd televised debate, there was little mention of the man who’d confessed to conspiring with separatists and insurgents, effectively waging war against a sovereign state, all the while living in Iran with a fake ID and a fake passport.
Former Air Marshal Shahid Lateef is a military strategist and a political commentator. In a rushed telephonic conversation withDNA, he lamented the action – or rather, the lack thereof – taken during the time between the airing of the commander’s statements and the announcement of the death sentence.
“The Prime Minister mentioned Burhan Wani and the Kashmir issue in his address on an international forum,” he said, acknowledging that PM Nawaz Sharif’s speech was a good one (a fairly popular view). “But,” he asked “why didn’t he mention Yadav? If he had, the international forum would have had a name.”
The forum he was referring to is, of course, the UNGA session of 2016.
And he has a point – talk of the Indian commander had died down in favour of other news – even domestically. And considering what happened the last time Pakistan presented evidence regarding Indian involvement (the dossier dismissed for lack of material evidence in 2015), why the state chose not to bring the matter to the same forum in 2016 does, admittedly, give one pause.
And this jhijhak (hesitancy) was a weakness, which he said was akin to “shooting ourselves in the foot”.
“And while the Indian media verbally attacked Pakistan regarding the sentence, the Prime Minister spoke about improving relations and preserving Pakistan and India’s friendship.”
There are – despite the general opinion when it comes to judicial decisions and the penal code – laws in place, and standards of procedure.
SoPs — for instance — like the one Commander Yadav was tried under: Section-121 of Pakistan’s Penal Code.
“We can’t do it,” Air Marshal (r) Shahid Lateef simply said, when asked if, considering the rising speculation about India implementing a tit-for-tat policy by playing a hand in the disappearance of a retired Pakistani Col – there could be a possible prisoner exchange nonetheless
Section-121 — Waging or attempt to wage war or abetting waging of war against Pakistan
It’s all spelled out pretty clearly in Chapter VI: Of Offences Against the State:
“Whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life shall also be liable to fine.”
To put it in context: Commander Yadav “abetted” an insurrection against Pakistan. He has, thus, committed afore mentioned offence.
The commander did not merely attempt to foil his nation’s enemy in a James Bond-esque performance his media moniker may make it out to be. Innocents have been killed as a result of his actions – Pakistani citizens have been murdered. He’s no mere spy, recording top secret information to pass on to his RAW taskmasters akin to Ravindra Kaushik – one of his many predecessors. He is a facilitator of terrorism and a murderer.
Why then, is the Pakistani side not referring to him as such?
Why won’t we call a spade a spade?
As Mr Ahmer Bilal Soofi explained, it’s because espionage is what the accused has officially been charged with.
Ahmer Bilal Soofi, an expert on international law, is a practicing advocate before Pakistan’s Supreme Court, and is a member of the UN’s advisory committee on Human Rights.
When asked for assistance in understanding the legal case now in the limelight, Mr Soofi explained what he meant when he – and other analysts – said that the Indian commander had been charged for a limited offence.
“Kulbhushan has acted in two capacities,” he began, “first – his acting as a spy, and secondly, waging war (under section-121 of the Penal Code). But as of now he’s only been charged with espionage, and while there may be other grounds, and there may be ongoing investigations of the same, espionage is what he’s been sentenced for in the Field General Court Martial.”
“We’ve been showing relaxation in the past,” said Air Marshal (r) Shahid Lateef. “That is why India has done this – sent a servingofficer for espionage and insurgency.”
It was a bold move no doubt, one that said officer has admitted to. India has, to borrow a phrase, been caught with one hand in the cookie jar.
Then why, one wonders, is the Indian government calling a fair trial “pre-meditated murder”?
Smoking guns and klaxons
This is, after all, hardly the first Indian spy caught – or the first one who has been sentenced, for that matter.
From Sarabjit Singh (who, the Indian government famously claimed, had wandered in to Pakistan by a drunken mistake) to the notorious Ravindra Kaushik. From Sheikh Shamim to Ramraj. From Surjeet Singh to Vinod Sathe. Pakistan and India’s shared history of espionage is far longer than we have space to print.
Then why does India choose now to bluster and sound the klaxons?
“Because,” Air Marshal (r) Shahid Lateef said, “one never loses the game like this. India has been caught red-handed – it can’t deny it. But it will — and is — trying to dilute it to confuse the international community.”
And the evidence is not inadmissible, since the confession was made in accordance to Section-164 of the CrPC (mentioned in the beginning), as explained by Mr Bilal Soofi, who also said India would have an extremely difficult time trying to get Yadav repatriated. That’s partially they have no grounds for an appeal – as he explained to DNA, those in charge had been quite clever: everything was done by the letter, leaving no room for the procedure to be found at fault and thus overturned.
And it’s also because this is one of those rare occasions when the Pakistani state, the opposition, the religious right, the military – and of course, public sentiment — are all in agreement: Yadav cannot be spared.
“We can’t do it,” Air Marshal (r) Shahid Lateef simply said when asked if – considering the rising speculation about India implementing a tit-for-tat policy by playing a hand in the disappearance of a retired Pakistani Col – there could be a possible prisoner exchange nonetheless.
“Our job is safeguarding our national interests. We must not,must not let him go. And for what – for India? They don’t want resolution, and there are bigger matters like Kashmir and the Water dispute still. No,” he concluded, “we cannot let him go.”
The verdict, as it stands, is in.
Hang he must.
And hang he will.