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Mainstream, VOL LVI No 16 New Delhi April 7, 2018

Indo-Pak Scenario through the Prism of Two Recent Developments

Saturday 7 April 2018

by Gouri Sankar Nag and Debabrata Das

This article was received sometime back but could not be used earlier due to unavoidable reasons.

This paper is an attempt to highlight certain issues constituting a facet of the current scenario between India and Pakistan from which to infer the trajectory of their evolving relations. However, to make things clear, in focussing upon issues we have consciously avoided oft-cited cases and perhaps the most intractable issues like Kashmir and the nuclear arms race. This does not mean that we want to play down the significance of both these issues but are purposely shifting our focus to some rather relatively low-key issues; we wish to show if the prospect of their intercourse might look brighter or all the same, what the constraints are at present, and whether there exists any probability of resolving them etc.

The first issue is the arrest and conviction as well as the death sentence meted out to Indian national Kulbhushan Jadhav by Pakistan’s military court for the charge of espionage and sabotage. This has created a new ground of friction between India and Pakistan. According to the report published in Hindustan Times dated April 16, 2017, there are 13 others lodged in Pakistani jails, facing similar charges. On the other hand, more than 30 Pakistanis are in Indian prisons—either convicted on charges of spying or facing trials—according to a 2015 list. But when many of these Pakistanis, thus detained in Indian jails, have served their sentences and yet cannot go back to Pakistan as Pakistan refuses to accept them as its nationals, the speciality of Jadhav’s case derives from the formal official level exchanges between the Ministry of External Affairs (MEA) and its Pakistani counterpart. To look into the case, as to whether he was illegally detained and also wrongly awarded capital punishment, New Delhi sought a copy of the chargesheet filed against Jadhav and the death sentence handed out to him on April 14, 2017.

The point of illegality arises from two prima-facie sources; one is the Indian claim that Jadhav was innocent and abducted from Iran by the Pakistani intelligence agency. The official spokesperson of the MEA, Gopal Baglay, made it clear that ‘Kulbhushan Jadhav is a kidnapped innocent Indian who is a retired officer of the Indian Navy and this was communicated to Pakistan more than a year ago when his illegal custody by the Pakistan authorities was known’.

Second, whether the proper legal procedure of trial was followed and if so, why Pakistan is persistently denying consular access to Jadhav despite repetitive demarches from India which lays bare the nature of the ‘indefensible sentence’ put on him. However, it may be mentioned that Jadhav is not the only Indian to whom Pakistan has denied consular access. Rather, it earlier refused consular access to Hamid Nehal Ansari, a 27-year-old management teacher from Mumbai, who went to Pakistan to meet his fiancée.

Quoting a government source, the report of the HT mentioned that in all there are 208 Indians in Pakistani jails. Among them 174 are fishermen. Among the civilian prisoners, 13 are facing espionage charges. It is important to note that India and Pakistan started exchanging the list of nationals of each country lodged in each other’s jails following an agreement on consular access signed in 2008. Under the agreement, twice every year—on January 1 and July 1—both the countries would be exchanging the list of prisoners through diplomatic channels simultaneously in New Delhi and Islamabad.

Jadhav’s case receives media hype (as evident from the transcript of the weekly media briefing by the official spokesperson of the MEA, Gopal Baglay, in which he encountered a slew of questions pertaining to the issue of Jadhav, the charges and counter-charges and what India was doing to exert pressure on Islamabad, the matter of information-sharing with Iran, Pakistan etc.) mainly for three reasons. One is due to a PIL filed by a social activist to the Allahabad High Court urging the Court to direct the Centre to approach the ICJ (Financial Express Online edition, New Delhi, April 19, 2017 http://www.financialexpress.com/india-news/kulbhushan-jadhav-death-sentence-row-hc-reserves-order-on-plea-to-direct-mea-to-move-international-court-of-justice/633633 accessed on December 15, 2017)

Second, according to the report of the HT, Professor Bhim Singh, a patron of the National Panthers Party, who has been fighting for the release of those Pakistani prisoners who are eligible for release, is approaching the Pakistani Supreme Court for providing legal aide to Jadhav.

Thirdly, India was about to release around a dozen Pakistani prisoners but following the announcement of death sentence to Jadhav, it put on hold the release. (HT, 16.04.2017) Not only that, as tension ratcheted up, India also called off the maritime security dialogue with Pakistan. The agenda of the dialogue was to thrash out modalities of information-sharing and strategy to combat maritime pollution and trafficking. But the meeting was cancelled a day after Pakistan denied consular access to Jadhav for the 14th time. The stand of New Delhi was conspicuous when it maintained that it would treat Jadhav’s sentencing as “pre-meditated” murder if Islamabad went ahead with the execution. (HT, 16.04.2017)

By an interim order from the International Court of Justice (ICJ) at The Hague, Netherlands in May 2017, Jadhav is still alive. “Asserting jurisdiction under Article 36(1) of its statute, the ICJ stayed Kulbhushan Jadhav’s execution and ruled that ‘spies’ and ‘terrorists’ cannot be excluded from consular access under the Vienna Convention. This completely vindicated the Indian position.” (Rana Banerji in the recently released Special Report of the New Delhi-based think-tank Institute of Peace and Conflict Studies entitled Three Years of Modi Government, 2017, p. 39) In addition, the glimmer of hope on this score seems to be brightening after former judge of the Supreme Court of India Dalveer Bhandari’s election to the ICJ. According to commentator Nilova Roy Chaudhury, it was not just a display of India’s maturity of approach but showed “the efficacy of concerted diplomacy”. To quote Roy Chaudhury further, “it was vitally necessary to win not only for the general diplomatic assertion of its global standing by defeating a member of the P-5 in a straight contest, but also particularly because it is fighting Pakistan in the Kulbhushan Jadhav case, which is awaiting a final verdict at the ICJ...India rushed to the ICJ citing Islamabad’s violation of the Geneva Conventions as it sought relief and an immediate stay on Jadhav’s execution. The World Court asked Pakistan to keep the verdict in abeyance pending the ICJ hearings.” (http://www.southasia journal.net/win-at-the-un-is-a-big-deal-for-india/ accessed on December 16, 2017)

Of late, it was decided that on December 25, 2017 Jadhav’s mother and his wife along with an official of the Indian embassy would meet him in the Pakistan jail. But from the newspaper report of December 14, 2017, it transpired that Pakistan would not allow any lawyer for Jadhav, because he was convicted for spying. This anti-human rights stance of Pakistan is problematic and incongruous with its readiness to go for arbitration in the ICJ which would take place in May-June 2018. With each passing day the episode is getting aggravated with strong indication of the two sides entering into ever greater loggerheadsas evident from the reporting of December 15, 2017 in a newspaper (the Bartaman Patrika) that uncertainty was writ large whether Jadhav’s mother and wife would at all be allowed to meet with him. Whereas Pakistan resorts to well-guarded tactics of denial mode, India, it seems from a very recent press briefing in mid-December 2017, accords seriousness in this regard since national sentiment is involved here.

Another issue is the unexpected release of Lashkar-e-Tayyiba (LeT) leader Hafiz Saeed from house arrest in Pakistan on November 22, 2017. Having been freed, Saeed openly provoked the Kashmiri terrorists against India. The obser-vations of The Diplomat are worth mentioning in this regard. It said: “Hafiz Saeed’s release completes the political mainstreaming of jihadists in Pakistan, by ensuring that the prime suspect of the Mumbai attacks of 2008, and a UN designated terrorist, will now not only be able to streamline militant activities targeting India, he can now properly spearhead the MML (the proscribed Jamat-ud-Dawa created a new political offshoot Milli Muslim League) and eye the Parliament next year. Saeed’s release shows the dwindling power of the civilian govern-ment—increasingly under the pressure of radical Islamist groups...” (http://thediplomat.com/2017/11/hafiz-saeeds-release-completes-the-political-mains treaming-of-jihadists-in-pakistan/&grqid= QsmD1X7h&hl=en-IN accessed on December 16, 2017)

How the situation inside Pakistan is rapidly deteriorating can also be gauged from the fact that the almost cornered Pakistan Government had to strike a deal with the Islamist protesters following the violent waves of demonstration and road-blockade at the fag-end of November, 2017. The demand was for Pakistan Law Minister Zahid Hamid, accused of blasphemy, to step down. This episode might have a hidden connection with the release of Hafiz Saeed as he was freed by a judicial panel just a few days ago. (https://mobile.nytimes.com/2017/11/27/world/asia/islamabad-protesters-blasphemy-deal.html accessed on November 30, 2017; the online version of the New York Times, the article having been written by Salman Masood)

India’s dilemma emanates from the fact that it cannot allow Pakistan to become a safe haven for terrorists not only for its own security but also for Pakistan’s security and stability as well. Because if the Pakistani state falls prey to militant and terrorist groups, both inside and outside Pakistan, it could unleash a threat to the entire region. So, it’s a veritable irony that both should have worked together in the field of common problems like socio-economic vices and to counter the emerging challenges such as terrorism; yet they themselves are entrapped in a ‘constructed security dilemma’.

We say the insecurity perception is mutually ‘constructed’ because time and again our approach vis-à-vis Pakistan has not been amicable either. Rather in 2008, in the aftermath of the Mumbai terrorist attacks, our discourses on the possibility of engaging with ‘limited war’ with reference to Pakistan and use of a phrase like ‘surgical strike’ in 2016 by the Army Chief and its glorification even by Prime Minister Modi in public rallies—widely circulated through the digital medium—probably created an air of our superiority and contrarily posed a roadblock to reconciliation by holding the Pakistani state apparatus a siege in paranoia as if India still has a design for the restoration of Akhand Bharat. In fact, this sort of elite discourse is unacceptable because such discourses are connected with the political agenda of a particular party and its own power drive that tends to rake up a religious appeal to evoke the sympathy of the otherwise divided myriad constituencies thereby distorting the possibility of social ties at the popular level across the border. That’s why “The hostile relations between India and Pakistan have provided terrorists a chance to exploit the dismal security relations between these two states for their own gains.” (Security Community in South Asia by Muhammad Shoaib Pervez, Routledge, First Indian Reprint 2015, p. 4)

It would not be impertinent in this context to refer to Modi’s claim of Pakistan’s interference to influence the results of the 2017 Gujarat Assembly elections. During the Bihar Assembly elections in 2015, Amit Shah similarly quipped that their losing in election would be celebrated with crackers in Pakistan. It corroborates our allusion to the construction of such inimical perception towards the neighbouring state. It amply shows that had we been sensible and really willing to secure Jadhav’s release from Pakistani jail, we would not have whipped up such a bogie of mistrust. However, the party’s electoral victory is the be-all and end-all of our political elite’s interest.

Finally, in regard to the second issue, what we can claim as partial success of our diplomatic endeavour, though indirectly, is putting Hafiz Saeed again under house arrest by means of pressure from the US. But so far as the Kulbhushan issue is concerned, it may be maintained that we may not meet with a similar success if we bank on persuading the US. It is because the US is invested with a dubious character and it does not see “the threat India faces from Pakistani proxies in the same way it sees the problem in Afghanistan” (accessed on October 27, 2017 from http://www.orfonline.org/research/tillerson-visit-india-needs-to-learn-from-china-pak-on-us-ties/) This necessitates a different angle to try to evolve a line of action and engagement in the changed context in the aftermath of the prolonged civil war in Syria. With the retreat of the IS and the emergence of a rejuvenated Russia from the fumes of the war, it’s time for the Indian think-tanks to renew the country’s Russian connection perchance it might be useful to ease the Jadhav-knot, the recent Achilles heel in Indo-Pak relations since the prospect of easy diplomatic rapprochement is unlikely given the hard stance taken by the Pak Army with the Khyber Pakhtunkhwa Assembly passing a resolution demanding Jadhav’s execution. (See the chapter on Pakistan by Rana Banerji in the recently released Special Report of the New Delhi-based IPCS entitled Three Years of Modi Government, 2017, p. 40) So, while Rana Banerji talks of the scope of a probable headway through a new track-II outreach to the appropriate quarters which would be accommodative of the voice of the Pakistan Army, we feel our Russian channel could be advantageous as Russia nowadays is closely connected with Pakistan in terms of defence cooperation with the Army and contacts with the Taliban. (See the excerpts of the views of Petr Topychkanov, a Fellow in the Carnegie Moscow Centre’s Non-proliferation Programme in a roundtable discussion entitled ‘Russia’s Outreach to Pakistan: A South Asian Rebalance’ in carnegieindia.org/2017/11/30/russia-s-outreach-to-pakistan-south-asian-rebalance-event 5771)

Dr Nag is an Associate Professor and Head, Department of Political Science, Sidho-Kanho-Birsha University, Purulia (West Bengal), and Dr Das belongs to the Indian Institute of Indology, Kolkata.

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