Trial by the media


Kulbhushan Jadhav's life can be saved. But there are several pre-conditions to achieving this objective. First of all, New Delhi has to comprehensively bury any sense of false pride. In doing so, India can learn from Israel: in Tel Aviv, no matter which party is in power, bringing back its soldiers - and civilians - captured by the 'enemy' is a commitment almost akin to practising their faith.
Israel - like India these days - has habitually talked loftily about not making any concessions to terrorists and about isolating states, which use proxies for violence or practise terror as an instrument of foreign policy. But quietly, behind the scenes, Israel will do anything - literally anything - to bring back alive its soldiers and civilians in 'enemy' hands.
There are many instances where the Jewish State has bent over backwards till breaking point to have dead bodies of its soldiers repatriated home. It has often walked many extra miles to dig up and bring back the mortal remains of its men and women in uniform long after they were killed by adversary states or died in combat with non-State actors outside Israel's borders.
The second precondition to saving the life of the retired navy commander, Jadhav, through tough, difficult and perhaps out-of-the-box negotiations, if need be, is that domestically New Delhi has to prepare the nation to accept that like India, neighbour Pakistan, too, has domestic compulsions in anything to do with this country. This may prove more difficult than the first precondition because for at least five years, if not longer, informed debate on Pakistan has been replaced in this country by rabble-rousing.
Just follow the public discussions - especially in the electronic media - since Pakistan pronounced the death sentence on Jadhav and it will dawn on those with even a moderate sense of judgment and understanding how much our pundits have already done to damage the former navy commander's case.
The reality is that what is written and heard in the Indian media has consequences in Pakistan. China, too, reacts to what figures in the Indian media at times, albeit rarely saying so in public. The more a nation lacks an unfettered press as the 'fourth estate', the more a country pines for the free press it sees flourishing in a neighbouring state like India.
Diplomacy and Statecraft mandate that the ministry of external affairs should describe as "farcical" and run down the way Jadhav was tried in Pakistan and sentenced to death. But when this country's media latch on to that theme and go on for days without providing any new light - as responsible media are required to do - on how the former navy commander was tried in a kangaroo court, it only puts up Pakistan's back and makes the job of getting Jadhav back home more difficult.
Many moons ago, three Indian truck drivers were kidnapped in Iraq. That was a time when this country's electronic media were beginning to display their power to make decision-making in government difficult. The quest for ratings was tempting enough to report rumours as facts and air unsubstantiated reports.
One day, Shyam Saran, who became foreign secretary 10 days after the kidnapping, appealed to the media with folded hands at a press briefing on the issue to be accountable in their reporting or else the three drivers could be killed by their abductors. The channels complied and their cooperation contributed to the release of the three Indians unharmed.
It would be very interesting now to know how many of our pundits - who hold forth on the latest issue of contention with Rawalpindi - have read the Pakistan Army Act of 1952, which is the legal basis for trying Jadhav in a "Field General Court Martial" at an undisclosed location across the border. This is especially true of several retired Indian diplomats who once dealt with Pakistan and have now joined the bandwagon of raising the heat on Indo-Pakistan relations in the full knowledge that if they appear conciliatory, they are unlikely to be invited repeatedly by television channels, which pander to raw emotions about Islamabad than to reason.
We may not like it, but the fact is that the military is Pakistan's most durable institution. There is a saying that every country has an army but in Pakistan, the army has a country. It could even be argued that the army is perhaps the only stable institution in Pakistan. The Inter-Services Intelligence, no doubt, engages in rogue activity, but so does America's Central Intelligence Agency and Russia's Federal Security Service - FSB as it is known by its Russian acronym - in areas of Moscow's security interests like Ukraine and Georgia.
There are still enough whiskey-drinking, English-speaking officers in the Pakistani army who are at ease at Sandhurst or at West Point military academies to prevent this institution from surrendering to the theocratic rigours of those who sport flowing beards and display their Islamist devotion over accepted Western conventions that modern defence forces hold dear.
If our pundits and Pakistan-bashing retired diplomats had bothered to read the neighbouring country's Army Act of 1952, they would have informed the Indian public by now that in November 2015, Islamabad made crucial amendments to this legislation. The amendments to Section 2 of this law were made so that military courts holding in-camera trials are now legally permitted, among other things, to keep secret the names of an entire range of court officials engaged in such trials "for the protection of witnesses, president, members, prosecutors, defending officers and other persons concerned in court proceedings".
We may not like it as a people and the Indian government has every right to challenge and discredit the trial of the retired navy commander in Pakistan. But in the court of public opinion abroad, we would be weakening our efforts to bring back Jadhav if we do not recognize that he was tried under the Pakistan Army Act of 1952. The amended Section 2 of this Act legally allows Pakistan to keep everything about such trials secret.
When the amendments were discussed in Pakistan's National Assembly and its Senate in 2015, there was considerable disquiet among members about the draconian new provisions. But the terrorist attack on an army-run school in Peshawar had just killed an estimated 132 children, an incident widely regarded as a turning point in the attitude of the Pakistani people towards terrorism as an instrument of State policy. So an approach of zero tolerance towards anything that was seen as undermining Pakistan's security met with the approval of the National Assembly and the Senate.
International law experts have defined the amended law as a war-time legislation. Jadhav is not the first person to be sentenced secretly under this law. From Pakistan's point of view, this law has aided its army operations in tribal areas. That American army generals have praised Pakistan's anti-terror operations in testimony after testimony on Capitol Hill is proof that while India may not like it, Pakistan's allies like China and the United States of America approve of the logic behind it and what it has brought to the counter-terrorism table. In any case, the Pakistan Army Act of 1952 is derived from its original British source. So the United Kingdom is unlikely to disfavour it either.
Jadhav was kidnapped in Iran, where he had a legal business and taken to Pakistan for his trial. Because of the allegations that the army general headquarters has made against him, domestic compulsions in Pakistan make it imperative that he should be made an example of. The death sentence against him reflects those domestic compulsions.
India's single-minded effort should be to ensure that Jadhav is brought home safely. It feels good in drawing-room discussions to discredit Pakistan's military justice system but that will not rescue the Indian from the hangman's noose and repatriate him to where he belongs. India must be prepared for a grand bargain with Pakistan in this instance. The country owes it to Jadhav both as a citizen and as someone who once donned its naval uniform. The grand bargain will probably happen by the time Prime Minister Narendra Modi meets his Pakistani counterpart, Nawaz Sharif, in Astana in June at the time of the Shanghai Cooperation Organization summit. But it cannot be negotiated through the media and the less that is said about the case in public the better will be its chances for a resolution in private.