📰 India-Pakistan ties and the mirror of 2019
There are sound reasons why New Delhi must shift course from the belligerence it once profited from
•An official delegation from Pakistan was in New Delhi on Monday to hold talks with its Indian counterparts under the aegis of the Indus Water Treaty. In March, the Indians had gone to Islamabad to attend the previous meeting. Starting from February, India has been sending through Pakistan consignments of wheat, via the World Food Programme, to the Taliban-run Afghanistan.
•Evidently, channels of communication between the two governments are working and open hostility has subsided, if not vanished completely. In his speeches, Prime Minister Narendra Modi no longer targets Pakistan as an enemy country or invokes it to target politicians of Opposition parties, a regular feature till a few years ago. This is not because of a sudden change of heart or out of great love for Pakistan. The change has been driven by realist considerations that surfaced during the Ladakh border crisis on the Line of Actual Control with China in the summer of 2020.
China forced the hand
•The border crisis in Ladakh raised the spectre of a collusive military threat between China and Pakistan. As various military leaders have since stated, such a challenge cannot be effectively dealt with by the military alone and would need all the instruments of the state — diplomatic, economic, informational, and military — to act in concert. To prevent such a situation, India’s National Security Adviser Ajit Doval opened backchannel talks with Pakistan, using the United Arab Emirates (UAE) as an interlocutor.
•This was confirmed by the UAE’s Ambassador to the United States, as the Indian and Pakistan armies agreed to a reiteration of the ceasefire on the Line of Control (LoC) in Kashmir in February 2021.
•It was a U-turn for the Modi government, after the dilution of Article 370 in Jammu and Kashmir in August 2019, and the number of ceasefire violations along the LoC had reached a record high in 2020. In line with Home Minister Amit Shah’s statement in Parliament vowing to wrest back Pakistan-occupied Kashmir — and Aksai Chin from China — every other politician from the Bharatiya Janata Party politician was threatening Pakistan. By then, the Indian Army was boasting of its firepower on the LoC.
•It thus came as a surprise that Mr. Doval had agreed in his backchannel talks with the Pakistan Army to undertake certain actions in Kashmir as part of a mutually agreed road map. Reports emanating from Pakistan Army Chief General Qamar Javed Bajwa made it clear that two actions by India were a precondition for any further steps by Pakistan: restoration of statehood to Jammu and Kashmir; and an announcement of no demographic change in the Kashmir Valley.
•As the backchannel talks dragged on, the Indian side expressed its political inability to initiate these actions. With Imran Khan (now former Prime Minister) refusing to move ahead, it created a stalemate. By then, limited disengagement had occurred with the Chinese forces in Ladakh, thus stabilising the situation along the LAC to some extent. India gave assurances to Pakistan when the threat of escalation with China became very high in late 2020 following the Indian Army’s occupation of certain heights in the Kailash range in Ladakh. Pakistan had then not shown any inclination to mobilise its forces to the LoC, which would have created a nightmare scenario for the Indian security establishment. Even if there was no further progress in bilateral ties, the Indians were happy with this new status quo with Pakistan while the border crisis with China was alive. This bought them time to further consolidate the changes in Kashmir undertaken in August 2019.
Kashmir suffers
•The delimitation of Assembly constituencies in Kashmir has been completed. The fresh making of an electoral map disadvantages Kashmiris, and new Assembly elections seem but a matter of time. That would bring closer the BJP’s dream of installing a Hindu Chief Minister in India’s only Muslim-majority region, an attempt made earlier after the sacking of Mehbooba Mufti as Chief Minister. If these efforts are successful, the statehood to Jammu and Kashmir could also be restored.
•However, despite a harsh security-centric approach by the administration, violence in the region has gone up in the past year or so. All the resources of the Indian state have now been devoted towards a successful conduct of the Amarnath Yatra, with a record participation this year, even as the same administration bans Friday prayers at the iconic Jamia Masjid in Srinagar using the flimsiest of excuses. Congregational prayers were disallowed at the historic mosque last Friday after the sentencing of Kashmiri separatist leader Yasin Malik. His sentencing also earned a strong statement of condemnation from the Organisation of Islamic Cooperation (OIC) that was rejected by India’s Foreign Ministry. Things have changed drastically from February 2019, when the then External Affairs Minister Sushma Swaraj was invited as the “guest of honour” by the OIC.
•Islamabad’s rhetoric helps the Modi government make its case domestically that the crisis in Kashmir is solely of Pakistan’s making. While Pakistan’s use of violence by sending weapons and militants has been a major factor, exploiting it to overlook the political grievances of Kashmiris thwarts a lasting solution. The idea that Kashmiris have no agency of their own and are instruments in the hands of the Pakistan military defies both history and common sense.
No environment in Pakistan
•The recent change of government in Pakistan, including Imran Khan’s removal, is seen as a positive in New Delhi. The official Indian establishment has had close ties with both the Pakistan Muslim League-Nawaz and the Pakistan Peoples Party that are now part of the government. There are Indian businessmen who have acted as interlocutors with the Sharif brothers on behalf of the Modi government. Mr. Modi had himself made a sudden stopover at the Sharif household in December 2015 to attend a family wedding, and subsequently allowed Inter-Services Intelligence (ISI) officials to visit Pathankot airbase for terror attack investigation.
•Officials on both sides argue that there are some low-hanging fruits which can be plucked the moment a political go-ahead is given. These include a deal on the Sir Creek dispute, an agreement for revival of bilateral trade, return of High Commissioners to the missions in Delhi and Islamabad, and build-up of diplomatic missions to their full strength. Demilitarisation of the Siachen glacier is still seen to be off the table as the Indian proposal is believed to be unacceptable to the Pakistan Army.
•The environment in Pakistan is, however, not conducive for any such move. Imran Khan is garnering big crowds in his support and has put the Shehbaz Sharif government and Pakistan Army under pressure. With the economy in doldrums, there is little room for manoeuvre with the new government. Even an announcement of talks with India, without New Delhi conceding anything on Kashmir, will provide further ammunition to Imran Khan. The current moment, where New Delhi and Islamabad seem willing to move forward but are restrained by Pakistan’s domestic politics, somewhat mirrors the lawyers’ protest against General Musharraf in 2008 which derailed the Manmohan-Musharraf talks after they had nearly agreed on a road map.
New environment
•A window of opportunity would possibly open in Pakistan after the next elections, which are scheduled next year but could be held earlier. By then, the Pakistan Army would have a new army chief, as Gen. Bajwa’s three-year extension comes to an end in November. Gen. Bajwa’s successor may look at things differently. By then, if Jammu and Kashmir has a new State government after elections and the border crisis with Beijing is resolved, the ground would have completely shifted in India. As Mr. Modi goes for another re-election in 2024 with little to show on the economy front, a totally different dynamics on Pakistan would be at play in India.
•Following the Balakot airstrike (2019), Pakistan was at the forefront of Mr. Modi’s election campaign in 2019. In a recent book chapter, Mr. Doval has written that Balakot “blew away the myth of Pakistan’s nuclear blackmail”. For the next strike on Pakistan, “domain and level will not be limiting factors”, he wrote.
•Mr. Doval does not mention it but last time, India lost a fighter aircraft, had its pilot in Pakistani captivity, shot down its own helicopter killing seven men, had another near-miss friendly fire accident over Rajasthan, and the two nuclear-armed countries threatened to shoot missiles at each other. That was in 2019. A reckless act in the future may have even more dire consequences. Unless that is what India desires, the Modi government must shift course from the belligerence it has displayed and profited from earlier in favour of proper diplomatic and political engagement with Pakistan.
Broad consensus between both the countries on fortifying strategic ties, says Rajnath Singh
•Defence Minister Rajnath Singh and his visiting Israeli counterpart Benny Gantz on Thursday discussed partnerships within the government-to-government framework, military training, and technological cooperation with a focus on Unmanned Aerial Vehicles (UAV) and defensive capabilities.
•A Letter of Intent on enhancing cooperation in the field of futuristic defence technologies was also exchanged between the two Ministers, a Defence Ministry statement said.
•The Ministers also discussed a cooperation agreement signed between the Indian Defence Research and Development Organisation (DRDO) and Israel’s Directorate for Defence R&D. The Ministers declared their intention to further develop defence cooperation in a manner that harnesses Israel’s “technological advance and operational experience”, together with India’s “extraordinary development and production capabilities”, the statement said. “Cooperation between the countries would be in line with Prime Minister Modi’s ‘Make in India’ vision.”
Meeting with PM
•Before the bilateral meeting, Mr. Gantz paid homage at the National War Memorial and reviewed a Guard of Honour on the lawns of Vigyan Bhavan. Mr. Gantz also met Mr. Modi and National Security Advisor Ajit Doval.
•“Discussed key issues pertaining to defence cooperation and global and regional scenarios during the bilateral meeting. We place great value on our strategic partnership with Israel,” Mr. Singh said on Twitter after the meeting. “There is a broad consensus between both the countries on further strengthening the bilateral strategic and defence cooperation.”
•The two countries are close to finalising a bilateral Free Trade Agreement (FTA).
•Mr. Gantz is accompanied by his Chief of Staff Maayan Israeli, Military Secretary Brig. Gen. Yaki Dolf, Director of the Policy and POL-MIL Bureau Dror Shalom and Head of the International Defence Cooperation Directorate Yair Kulas.
📰 Do we need a law to compensate those implicated in false cases?
A malicious and deliberate act on the part of an investigating officer should be viewed very seriously
•In October 2021, Aryan Khan, son of actor Shah Rukh Khan, was arrested in Mumbai by the Narcotics Control Bureau in a drug racket case. Now, after many twists and turns in the case, on May 28, he and five others were given a clean chit by a special investigation team from Delhi. Besides highlighting the torment suffered by him and his family, Aryan Khan’s case also threw the focus on the countless victims of malicious prosecution, many of whom are resourceless. In a conversation moderated by Sonam Saigal, Madan B. Lokur and Meeran Chadha Borwankar discuss whether those who have been implicated in false cases should be compensated. Among other things, they discuss reasons for wrongful and malicious prosecution, the role of investigating officers and agencies along with the judiciary, and whether India needs a new law to decide on the quantum of compensation. Edited excerpts:
We are increasingly seeing a lot of innocent people being booked. Why do enforcement agencies end up arresting and even charging the wrong people?
•Madan Lokur: I would like to draw a distinction between somebody who has been falsely implicated and somebody who has been implicated but is eventually acquitted, either because the evidence is deficient or because of some other reason. In the case of Aryan Khan, as it appears from the newspaper reports and some statements that have come out, there was actually no reason to arrest him and keep him in custody for almost a month. It is all right for the investigating officer to say, ‘we are still investigating’, but the investigation must have some basis. Otherwise, tomorrow they can pick up somebody and say, we think this person is a terrorist, we are investigating, and until we complete our investigation, let that person remain in jail. I have no doubt in my mind that Aryan Khan has been falsely implicated, and therefore, he must be compensated.
•There are several reasons why a person should be compensated if there is false implication, if there has been physical discomfort of being in jail because the person may have been in jail for many years. You have to consider the fact that our justice delivery system is painfully slow. There are instances where persons have spent eight, 10 or more years under trial. Then there is the mental trauma that not only a person, but also their family and children undergo. There is social stigma. In a village, where people know one another, maybe not intimately but they know who's who, the family of the one who is falsely accused gets ostracised. It may not happen in a big city like Mumbai or Delhi. Children also suffer. Can you imagine a child who is going to school and the teacher or some other child says that this boy’s father is a terrorist and he’s in jail. It is bound to affect the child. It is also important to look at mental health, emotional health, not only of the person, but also of the family.
•Meeran Borwankar: Any case of deliberate, intentional arrest or booking of an individual in a criminal case should be compensated. But I would also like to add, when an agency arrests a person, it’s only for 24 hours, and then the person is produced before the court. So it is not the enforcement agencies alone, it’s also the judicial mind which is applied within 24 hours. If the judicial officer feels or thinks that the investigating agency does not have enough evidence or it’s going blatantly wrong, they should not hand over the custody either to the agency or to prison. A case in India ordinarily takes six to eight years to conclude. You have the financial, social and emotional burden of being involved in a crime, which in case you were falsely accused or maliciously prosecuted, you should be compensated for.
Having said that, would it be fair to say that a wrongful prosecution stems from a malicious probe that operates on a bias and prejudice?
•MB: Maybe not always. I was once involved in the investigation of a case of murder, which later proved to be a case of suicide. So, sometimes there can be genuine mistakes. But a malicious and deliberate act on the part of an investigating officer should be viewed very seriously.
•ML: It could be and it may not be. Nowadays, there are several instances of sedition. In a case of a harmless tweet, the prosecution books the person for a charge as serious as sedition — here it is clearly malicious. Another example is Section 66A (punishment for sending offensive messages through communication service, etc.) of the Information Technology Act that has been struck down by the Supreme Court (in 2015) as unconstitutional. But there are still a few thousand cases that have been filed even after that. How can the prosecution ever justify that? There is also a very heavy responsibility on the judiciary. The judiciary also has to be alive to the fact that it is just a simple tweet and nobody is trying to topple the government. Therefore, the judge must say, ‘why accuse the person with sedition’ and ‘I don’t agree with this.’ Similarly, with Section 66A, the judge should ask, ‘why have you filed a case under a provision that has been declared to be unconstitutional?’ Both the prosecution and the judiciary have to be very, very careful about this. Because at the end of the day, if the prosecution is not able to prove its case beyond reasonable doubt, which is a standard of proof that is required, then one can come to the conclusion that the prosecution has a malicious intent.
•The Law Commission in its report number 277, titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’, has recommended enactment of a specific legal provision for redressal of such cases, covering the substantive and procedural aspects. How do you think we can calculate compensation?
•ML: I can’t give an answer offhand. But there has to be some way of doing it. First, you have to accept the fact that compensation has to be given, then comes the calculation. There have been instances. In scientist Nambi Narayanan’s case (he was acquitted 24 years after Kerala police arrested him in a fabricated spy case), the Supreme Court gave him ₹50 lakh as compensation (in 2018). The Delhi High Court on a couple of occasions has said the person needs to be compensated for having been kept in jail even though he’s entitled to bail and all the papers are in order. So, there are a whole lot of factors which point unerringly to the fact that compensation must be given.
•MB: Compensation is one extreme, which means we have come to a conclusion that it is a case of malicious prosecution. But we can also take steps in moderation; for example, more professional scrutiny by the senior officers of enforcement agencies. In Aryan Khan’s case, a senior officer could have applied his mind and maybe advised the overenthusiastic officers on the professional lines of investigation. The second role is of the prosecutors, as they are neither with the police nor with the investigating agencies; they are independent officers of the court. So, when the investigating agency or police are saying that a person is involved, and want his custody, even the prosecutors can point out to the enforcement agencies that they are wrong; that their case is not strong, so they should not ask for custody. But sometimes, and I can say from experience, agencies and investigators get very troubled by the thought that if we do not show the arrest of a person who is a very influential person or child of an influential person, adverse reactions shall be drawn by the media and by citizens. Therefore, the agencies sometimes err on the side of arresting; the role of the prosecutor and judicial application of mind will help against an error of judgment in prosecuting a person.
As seen in the case of Nambi Narayanan, we know that constitutional courts can exercise their vast powers in awarding compensation but there is also a remedy of filing a civil suit by the victim or the family members. But that is time consuming. Do you think that India needs a new law to ensure disbursement of compensation?
•ML: I think we should certainly legislate on this, so that there is no ad hocism. It is possible that one court in a small State may think that giving ₹5 lakh compensation to someone is a good idea, but a High Court in a bigger State may say, what is ₹5 lakh? It’s nothing, we should give at least ₹10 lakh. So we need a standard which can be laid down by legislation for determining compensation. You have instances, in cases of death in a motor accident, where the Motor Accident Claims Tribunal says ₹5 lakh is good enough, but the High Court may say no, that is too little, it should be ₹7.5 lakh and the Supreme Court may say it should be ₹10 lakh. Similarly, in land acquisition cases, as seen earlier, the collector would give some amount, the High Court would double it, the Supreme Court would make it two and a half times or three times more. So, there are principles on the basis of which compensation can be determined and is being determined not only in motor accident cases, but also in land acquisition cases. I think in the long run it’s a good idea if you have legislation on this aspect.
•MB: Yes, I agree with Justice Lokur but I would like to add that Section 211 of the Indian Penal Code talks of a false charge of offence made with an intent to injure. It can lead to two years of imprisonment, or up to seven years. This section, I think, is valid for malicious prosecutions, but further legislation for compensation would be a welcome step.
Given that the fundamental rights of the person implicated in a false case are infringed upon and violated, do you think that the state should have some legal or statutory responsibility?
•ML: Yes, it should. One of the consequences of not adhering to that responsibility is compensation. Or it could be punishment in some other form; there can be a departmental inquiry against an errant officer or he can be dismissed from service.
•MB: I also feel if the judicial officer at the time of trial, if not earlier, comes to the conclusion that the prosecution’s case is false, it can distinguish between a genuine error or a malicious one and the court can pass an order for compensation. The state must also take responsibility in case of wrongful confinement.
•If the judicial officer feels or thinks that the investigating agency does not have enough evidence or it’s going blatantly wrong, they should not hand over the custody either to the agency or to prison.
