|Dr Ashok Dhamija|
It goes without saying that there is a vast difference between the prosecution in an open court and that in a Court Martial. More often than not, you cannot expect full justice in a Court Martial which is conducted by the military officers. In the case of [Kulbhushan] Jadhav, till recently, in December 2016, Sartaj Aziz, Pakistan’s Foreign Minister, had told members of the country’s senate that there was insufficient evidence presented of Mr Jadhav’s alleged espionage. But, suddenly, in the most secretive manner, without letting the world know when he was charged and when he was tried, Pakistan has announced that Jadhav has been sentenced with death penalty by a Field General Court Martial, a military court consisting of Pakistan army officers, and that the Pakistan Army General has approved the said sentence. Any consular access to him was completely denied by Pakistan. No defence lawyer apparently; at least, not an independent defence lawyer (in India, it is a fundamental right to get a defence lawyer of your choice). The trial was secret. This, by itself, shows how unjust, hollow and farcical such trial would have been. India has rightly said that if Jadhav is hanged, it would be nothing but a premeditated murder.
Now, the question is why can’t India also have similar legal provisions? Why can’t India also amend its laws in a similar manner?
It is noteworthy that many Pakistan ISI spies are regularly caught in India indulging in anti-India activities. We prosecute them under the ordinary laws and in ordinary courts, and not in Court Martial, and moreover, there is no death penalty for such offences in India. We handle them with kid gloves.
For example, this news report shows that there are 30 Pakistan nationals currently facing charges of spying who are in Indian jails but none of them has been denied consular access whenever sought. No Pakistan spy has been sentenced to death. On the other hand, Pakistan did not allow India to have any consular access to Jadhav even once.As a political matter, the suggestion to fight fire with fire may be superficially attractive, and perhaps the case will be resolved by a prisoner exchange or other means, but there is little to recommend replicating Pakistan's unfair legislation. Some basic facts and questions about Pakistan's military courts are summarized here.