Without going into the events leading to kidnapping/arrest of Kulbhushan Jadhav by Pakistan, the blame for Pakistani boldness in sentencing him to death must rest on the weak and misplaced “humanistic” policy of Indian institutions in matters of national security and foreign policy.

It is a universally accepted international principle that foreign “security prisoners” are not released, but are exchanged, irrespective of the judicial outcome of their cases. “Security prisoner” is a term used for a foreign national caught in another country for involvement in activities endangering the security of that country. Thus, spies and terrorists are designated as “security prisoners”. As late as this year, the US and Russia have exchanged security prisoners on a reciprocal basis. There was an agreed procedure between India and Pakistan for reciprocity in the exchange of security prisoners. This was the practice followed by India and Pakistan in dealing with security prisoners held by each country until 2005.

While thousands of Pakistani nationals were held in India as security prisoners for involvement in terrorist activities, Pakistan hardly had any Indians as security prisoners due to India’s policy of not using its nationals for hostile activities in Pakistan. As Pakistan has a third rate and opaque judicial system, some border “crossers” operating along the international border in Punjab, Rajasthan and Gujarat, and visiting Pakistan, were falsely accused of spying and given very harsh sentences like death penalty, as in the case of Sarabjeet Singh and Manjit Singh, or imprisonments extending up to 30-35 years by the so-called Field Court Martial. The Field Court Martial is headed by an officer of the rank of major or colonel. It is universal legal practice not to try a foreign national in military courts, but the Indian government has failed to renounce even publicly such abhorrent Pakistani legal practices.

As Pakistan did not have a sufficient number of Indian security prisoners to exchange for its terrorists, it adopted a two-pronged approach. Firstly, it abandoned the long-standing policy between the two countries of not treating fishermen as prisoners but as economic offenders, who are to be released along with their boats at periodic intervals without pressing any criminal charges. However, India’s weak-kneed policy has created a situation where Pakistan demands the release of terrorists in lieu of the poor fishermen. Secondly, Pakistan subverted some of the persons masquerading as human right activists to file petitions in Indian courts, challenging the detention of Pakistani prisoners. In 2005, Bhim Singh, the president of Panthers Party of J&K filed a writ petition in the Supreme Court challenging the continued detention of Pak nationals caught in various parts of the country for involvement in terrorism and espionage.

Keeping in mind India’s national interest and the security of Indian nationals illegally detained (and some of them convicted by kangaroo military courts for death penalties) in Pakistan, the IB, on numerous occasions, advised the Ministry of Home Affairs and the Ministry of External Affairs to take up the case in the courts, thus opposing the unilateral release of prisoners contrary to the established international practice of exchange of security prisoners. That the IB repeated the advice to MHA and MEA in this regard is available on government records. IB even suggested amendments in the Foreigners Act and Criminal Procedure Code for the continued detention of these Pakistani security prisoners in the interest of national security. It has been our experience that most of the repatriated terrorists were recycled into terrorism once they reached Pakistan. It was because of the weakness of the then UPA government, which was willing to give maximum concessions to Pakistan to materialise its “dream of friendly relations with Pakistan”, because of the vested interest of litigants and their advocates and because of judicial pronouncements ignoring international security practices, that India, unilaterally, started releasing Pakistani security prisoners involved in terrorism, thus jeopardising the lives of Indian nationals detained in Pakistani prisons. Pursuant to its “please Pakistan” policy, India has released hundreds of Pakistani terrorists, including those involved in the most heinous acts of terrorism like the hijacking of Indian Airlines Flight 814. But for India’s false notion of “humaneness”, Sarabjeet Singh would have been alive and might have been spending time with his family. Pakistan, fully aware of this approach of the Indian courts, could muster the courage to sentence Kulbhushan Jadhav to death, without the fear of any reprisals by India, to score propaganda brownie points internationally.

Rajinder Kumar is a former Special Director of Intelligence Bureau and has been dealing with these issues.