Kulbhushan Jadhav has been sentenced to death by a Field General Court Martial, a military court consisting of Pakistan army officers. The question is: can a civilian (and, who is even a foreigner) be prosecuted by a military court? Court Martial is usually in respect of those persons who are serving in the armed forces. A civilian is subject to the ordinary courts of the land. So, how could Kulbhushan Jadhav be prosecuted in a military court in Pakistan?
To put the things in correct perspective, let me first highlight the relevant provisions of the (Indian) Army Act, 1950, which also has provisions for Court Martial. But, civilians who are not in any employment related to army are not subject to Court Martial. Section 2 of the Indian Army Act declares that following persons are subject to that Act:
- officers, junior commissioned officers and warrant officers of the regular Army;
- persons enrolled under the Act (i.e., the Army Act);
- persons belonging to the Indian Reserve Forces;
- persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test;
- officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces subject to certain conditions;
- persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
- officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
- persons not otherwise subject to military law who, on active Service in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army.
So, it is quite clear that a civilian (and more so, a foreigner) who is not connected in any way with the armed forces, is not subject to the provisions of the Indian Army Act, which means that such civilian cannot be prosecuted by Court Martial.
Let me now examine the relevant provisions of the Pakistan Army Act, 1952. Section 2 of this Act defines who are the persons subject to that Act. Mostly, this provision is on the lines of the Indian Army Act. However, it has some additional provisions. The most notable additional provision is sub-clause (ii) of clause (d) of Section 2, which is relevant for the purposes of our present discussion. The effect of this provision is that, persons (not otherwise subject to the said Pakistan Army Act) who are accused of having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air fore affairs of Pakistan, an offence under the Official Secrets Act, 1923, shall also be subject to the Pakistan Army Act. It is noteworthy that this particular clause has been added to the Pakistan Army Act by way of an amendment to the Act which was originally passed in 1952.
What this provision amounts to say is that any person (including civilian, foreigner, etc.) who is accused of an offence under the Pakistan Official Secrets Act, 1923, in respect of any defence establishment, etc., shall be subject to the provisions of the said Army Act. In simple words, a person accused of spying in respect of any defence establishment, etc., is also subject to the provisions of the Pakistan Army Act. So, a person accused of spying can be subjected to Court Martial, which is provided under the said Act for prosecution of such persons.
As mentioned above, we, in India, do not have any similar provisions in Indian Army Act, 1950.
Another relevant provision in the Pakistan Army Act is Section 59. It says that any person who is subject to this Act and who commits any “civil offence” (whether in Pakistan or outside Pakistan) shall be deemed to be guilty of an offence against this Act and shall be liable to be dealt with under this Act. This implies that such person who commits a “civil offence” can also be tried by a Court Martial under the said Army Act. Section 59 further lays down that on conviction for any such “civil offence”, such person can even be punished with death if the offence is one which would be punishable under any law in force in Pakistan with death. At this juncture, it may be pertinent to point out that under Section 8(3) of the said Pakistan Army Act, “civil offence” means an offence which, if committed in Pakistan, would be triable by a criminal court. This literally implies any offence committed in Pakistan.
Thus, a civilian or even a foreigner can be punished with “death” for a “civil offence” by a Court Martial in Pakistan, if such offence is punishable under any law in Pakistan with death.
Now, let us examine what civil offence was committed by Kulbhushan Jadhav and how death penalty could be awarded to him. Jadhav has been accused of the offence of “spying”. For this, we have to examine the provisions of the Pakistan Official Secrets Act, 1923, which is basically the same Official Secrets Act which is applicable in India, but certain amendments have been made to it by Pakistan after its separation from India.
Section 3(1) of the Pakistan Official Secrets Act, 1923, defines the offence of “spying” mainly as “if any person for any purpose prejudicial to the safety or interests of the State:‑
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy ; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy;”
It can be seen that “spying” is defined very widely and merely approaching or passing over or entering any prohibited area may be termed as spying.
Section 3(3) of the Pakistan Official Secrets Act, 1923, lays down punishment for “spying”, and this is a very drastic provision. As per this, a person guilty of “spying” shall be punishable with death or with imprisonment for a term which may extend to 14 years if such spying is intended or calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in relation to any work of any defence establishment, etc., or in relation to any secret official code. For other types of “spying” the punishment is imprisonment for a term which may extend to 3 years.
So, if a person is accused of spying to benefit a foreign power, or in relation to any defence establishment etc., or in relation to any secret official code, the punishment can even be death penalty.
It is this offence of spying under Section 3 of the Pakistan Official Secrets Act, 1923, with which Kulbushan Jadhav has been charged and sentenced with death penalty.
I may point out that Section 3 of the Official Secrets Act, 1923, which is applicable in India, defines a similar offence of “spying”, since the Pakistan Official Secrets Act is also basically the same Act but they have made some amendments in that Act. When we compare the definition of spying under the two Acts, it is broadly speaking the same, with some minor changes.
But, the main difference lies in the provision for punishment. Under the Indian law, where spying is committed in relation to any work of defence establishment, etc., or in relation to any secret official code, the punishment can be imprisonment up to 14 years. In other types of spying, the punishment is imprisonment up to 3 years. There is no death penalty for spying under this Indian law. Further, under the Indian law, there is no separate provision for spying in the interest or for the benefit of a foreign power. However, under the Pakistan law, the maximum punishment can even be death penalty, and moreover, there is a separate provision for spying in the interest or for the benefit of a foreign power, for which also death penalty may be imposed. These provisions have been added to the Pakistan law by way of amendments to the original Official Secrets Act, 1923, which was previously applicable to the undivided India.
So, the net result of this analysis is as under:
(1) Kulbhushan Jadhav has been accused of an offence of spying under Section 3 of the Pakistan Official Secrets Act, 1923, and the punishment for such offence can even be death penalty.
(2) Even though Jadhav is a civilian and a foreigner, he is subject to the provisions of the Pakistan Army Act, 1952, since he has been accused of the offence under Official Secrets Act in relation to a work of any defence establishment. This is due to Section 2(d)(ii) of the Pakistan Army Act.
(3) Under Section 59 of the Pakistan Army Act, Jadhav could be tried by a Court Martial for the offence of spying and could be sentenced with death.
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 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.
Also see this news report, as per which Bhopal police has been feeding and sheltering Pakistani spy Sajeed Muneer for almost a year after his release from jail.
Pakistan laws relating to death penalty to a spy are basically aimed at Indians who are caught on spying charges. Why can’t we have similar laws to target Pakistan spies similarly? Okay. India has never been proactive. But, at least, can we be reactive?