The death sentence handed down to former Indian Navy Commander Kulbhushan Sudhir Jadhav through Field General Court Martial in Pakistan seems to have taken the Indian establishment by surprise.

The ministry of external affairs has been making demarches to the Pakistani authorities repeatedly, seeking consular access to Jadhav. As of end-March, we reportedly approached the Pakistani foreign ministry not less than 13 times in this regard. Our records are meticulously kept, for sure.

However, the Court Martial route provides for in camera trial and absolves Pakistan of the requirement to provide consular access. International law has no real bearing on the situation in hand.

The MEA accusation that consular access should have been given is tenable only if the trial had been conducted through civilian courts.

The court martial trial procedure is well laid out under the Pakistan Military Act of 1952 and in turn it is derived from British military laws and is consistent with international practices.

Presumably, we did not anticipate that Pakistan was taking recourse to the court martial route.

The ambivalent (and contradictory) statements by senior Pakistani officials, especially Special Advisor to Pakistan Prime Minister Sartaj Aziz on Jadhav’s extradition, among others, probably misled us.

The court martial verdicts provide scope for appeal. Presumably, that stage is also past us. The Pakistan Inter Services Public Relations press release says that the Chief of Army Staff General Qamar Javed Bajwa has confirmed the death sentence pronounced by the court martial.

The wording of the MEA demarche suggests that the government anticipates the high possibility of the Pakistani military carrying out the death sentence.

At its core, three factors are at work here.

‘Espionage and sabotage’

For a start, this is not a run-of-the-mill spy trial. The Cold War analogy of swap of spies on a mist-covered remote runway in Vienna may not quite apply.

Jadhav was charged with “involvement in espionage and sabotage activities against Pakistan” – according to the ISPR bulletin – and he had apparently confessed before the court martial that “he was tasked by RAW [Research and Analysis Wing] to plan, coordinate and organize espionage / sabotage activities aiming to destabilize and wage war against Pakistan by impeding the Law Enforcement Agencies for restoring peace in Balochistan and Karachi.”

Now, the Soviet Union and the United States never ever undertook “sabotage” activities to undermine each other’s “homeland security”. The Cold War struggles took place in third countries through extensive use of proxy groups.

In an overview, it should be at once obvious that spy-craft has been thrown into turmoil. This is the Age of Terror. Gone are the days of sleepers and moles. Jadhav must be the last of the Mohicians.

As the custodian of national defence, Pakistani military regards it to be its sacred duty to counter the terrorist activities threatening the country’s national security. Any softening of the army’s posturing in this respect is not to be expected because it will be seen as a reflection on the army’s ethos and resolve, and professional pride. The Pakistani public opinion matters to the military leadership.

Thus, the Pakistani military is obliged to carry out the death sentence on Jadhav. (Pakistan’s Supreme Court and the civilian courts cannot question decisions handed down by the military judges.)

China-Pakistan Economic Corridor

Secondly, Jadhav’s theatre of operations allegedly consisted of Balochistan where the Pakistani military has taken upon itself the challenging task of providing security to the $54 billion China-Pakistan Economic Corridor, whose “gateway” is Gwadar Port.

In fact, the security situation in Balochistan is the Achilles’ heel of the CPEC. The Chinese personnel have been killed in Balochistan.

Therefore, the security of the CPEC is vital for China too and the topic figures regularly in the high-level exchanges between the two countries.

The Pakistani military leadership has unfailingly assured the Chinese side that there will be no compromises in ensuring the security and stability of Balochistan.

Interestingly, the ISPR press release claims that Jadhav was detained through a “Counter Intelligence Operation from Mashkel, Balochistan.”

Now, it is entirely conceivable that Pakistani military has shared the details of the operation with the Chinese.

According to the ISPR, during Bajwa’s meetings with top Chinese civil and military officials during his recent three-day visit to Beijing (March 16-19) where

“The Chinese leadership expressed complete understanding of the geo-political and economic cum security environment of the region and its implications for both the countries. They acknowledged positive role being played by Pakistan towards peace and stability in the region with special mention of Pakistan s role in eliminating terrorist groups…

“The Chinese leadership expressed their confidence in security arrangements for China Pakistan Economic Corridor (CPEC) and satisfaction on progress of the project.”

The topic also came up during Bajwa’s call on Chinese Foreign Minister Wang Yi. According to reports, Yi conveyed to Bajwa Beijing’s appreciation for “Pakistan’s efforts for the realisation of the China-Pakistan Economic Corridor as part of the One Belt One Road project.”

Again, last December, when General Zhao Zongqi, commander of the PLA Western Theater Command, visited General Headquarters of the Pakistani Armed Forces at Rawalpindi, Bajwa had personally “reaffirmed Pakistan Army’s unwavering support” for the security of the CPEC.

Premeditated murder

Thirdly, most importantly, it is strategically important for Pakistan to make an example of Jadhav’s execution.

At the most obvious level, it heightens the international awareness of Pakistan’s consistent allegation that India has been undertaking terrorist operations to destabilize Balochistan.

Conceivably, Pakistan entrapped Jadhav with great deliberation and planning with the specific intent to make a horrible example of him so as to both ridicule the Indian leadership as well as to reinforce before the international community its allegations of Indian interference in Balochistan.

Without doubt, this is a carefully crafted script playing out, and the denouement is predictable. The MEA is right insofar as all this fits into the chilling description of being a “case of premeditated murder.”

What lies ahead?

The heart of the matter is that notwithstanding all of the above, The Pakistan Army Act of 1952 has provision for “Pardons, Remissions and Suspension” of sentences.

Will India make a political appeal alongside an appeal by Jadhav through appropriate legal means?

If there is an iota of truth in the Pakistani allegation that Jadhav was involved in espionage and covert operations to destabilize Baluchistan, the government of India owes it to him to move heaven and earth to bring him home.

All countries undertake espionage activity. It is a practice as ancient as the hills. There is nothing to be ashamed of it. Even Chanakya would regard it as an integral part of statecraft.

At any rate, no matter what Jadhav did to earn a living after leaving the Indian Navy, do not overlook that he used to be a uniformed officer of the Indian armed forces.

Two, there is a human factor to all this and only the government of India can accurately weigh it. Often enough, in our system, the “burnt-out” cases are simply cast away, forgotten so that life moves on.

But those were also brave people once, who were willing to go out on a limb to serve the country’s interests where, frankly, many of us – nay, most of us – wouldn’t dare to tread, given the high risks involved.

Therefore, the government of India only can weigh in on a decision whether a beginning needs to be made with Jadhav’s case.

Simply put, being self-righteous may look nice, displaying “muscular diplomacy” may resonate in the public gallery of uninformed Indians, but life is real.

Had we been lily white, there would have been no Bangladesh today. Sikkim also might not have been a part of India.

Therefore, we should sit down to talk things over with the Pakistani establishment. Of course, there will be no dearth of ravishing explanations to what is happening:

  • That there is a keen tussle going on between Bajwa and Prime Minister Nawaz Sharif over Jadhav’s fate
  • That Bajwa (who had a fairly good reputation in Delhi until day before yesterday) is actually the real villain of the piece 
  • That a cat-and-mouse game is playing out involving a retired Pakistani Lt Colonel who disappeared in Lumbini on the Nepal-India border last week 
  • That Jadhav’s trial was rushed through in a few hours last Sunday by Bajwa, and so on.

But let us not waste time over all that gibberish.

With an eye on the future, it is imperative that we do not let the Jadhav affair create setbacks to the “thaw” that seems to have just about got under way below the radar in India-Pakistan relations lately.

The objective should be to clean up the debris of the Jadhav affair by finding a mutually satisfactory formula to get out of the cul-de-sac as early as possible so that a meaningful conversation between the two prime ministers would be possible on the sidelines of the summit meeting of the Shanghai Cooperation Organization on June 8-9 in Almaty.

Or else, the setback to India’s foreign policies will be severe, because this could snowball into a highly emotive issue in our public opinion, in turn forestalling our capacity to be flexible and realistic in navigating the relations with Pakistan at a juncture when the regional security environment is highly complicated.

To my mind, Pakistani military leadership will be reasonable if we go about communicating with discretion and sensitivity.