THERE are two avenues available to Kulbhushan Jadhav and India if they want to challenge his conviction. One, Jadhav himself may file a writ petition for which he would need to obtain a no-objection certificate from the federal government as per the requirement of Section 83 of the Code of Civil Procedure, 1908 (CPC). The second option is that the Indian state itself may invoke Section 84 CPC and appear before the courts of Pakistan as a petitioner.
Section 83 CPC bars alien enemies residing in Pakistan from suing in the courts without the permission of the federal government. The statutory explanation of Section 83 deems an alien enemy as any person whose country is at war with or engaged in military operations against Pakistan.
The above law is a statutory formulation of a well-recognised public policy doctrine that a state’s judicial apparatus shall not facilitate the enemy and neither will a state make available its remedies to the enemy. This public policy doctrine has been enshrined in the civil procedure codes of India, Bangladesh and Pakistan.
Nothing from India indicates that it regrets Jadhav’s unlawful activities.
The Supreme Court of Pakistan in its judgement (PLD 1969 SC 37) has explicitly stated that Section 83 was a complete bar for an enemy alien.
In another judgement reported as PLD 1966 Karachi (WP) 161, the high court observed that: “This law [Section 83] … was grounded upon public policy which forbids doing of acts that will be or may be to the advantage of the enemy state by increasing its capacity for prolonging hostilities…”
It was further observed that: “To allow an alien enemy to sue or proceed during war in the courts of the king would be to give to the enemy the advantage of enforcing his rights by the assistance of the king with whom he is at war.”
The court further held that: “In international law, fighting between two countries can take place without a formal declaration of war.”
This was due to the enactment of the UN Charter in 1945 after which the states stopped issuing declarations of war and instead resorted to mostly covert tactics of organising or financing military operations against each other.
Thus, the federal government while examining a request by Jadhav under Section 83 CPC will need to come to a conclusion about whether Jadhav’s activities are to be viewed as an act of waging a covert war on the part of the Indian state. For that purpose, it will be guided by the language of sections 121, 121-A and 122 of the Pakistan Penal Code that sum up the concept of waging war, or its attempt or its conspiracy within the territories of Pakistan. An identical provision in the Indian Penal Code has been widely interpreted by several reported cases of the Indian Supreme Court.
As mentioned here, the state of India may also consider filing the case itself on behalf of Jadhav before the Pakistani courts under Section 84 of the CPC, since its foreign minister has conclusively owned Jadhav as the “son of India” in her address before India’s lower house, the Lok Sabha. The said section authorises foreign states to become petitioners before local courts in the following words:
“84(1) A foreign state may sue in any court … Provided, that the object of the suit is to enforce a private right vested in the head of such state or in any officer of such state in his public capacity.”
If Section 83 was to be invoked given the existing material available through open sources, it may be ruled that Jadhav is an enemy alien. In this regard, the Supreme Court of Pakistan had earlier taken note of possible foreign connections of terrorist acts in the military courts judgement PLD 2015 SC 401. The court had observed that “we are in a warlike situation”. It further observed that “persons involved in the armed conflict against the state not only include foreigners but there are also indications of foreign funding and instigation”. Only months after the announcement of this judgement, Jadhav was arrested.
The federal government can only grant permission to Jadhav under Section 83 CPC if there is evidence to suggest that covert hostilities have ceased. There has been no statement or any other indication from the government of India to suggest that they regret the unlawful activities of Jadhav or that they will discontinue from carrying out such activities in the future. There is no offer even to adhere to the principle of non-intervention.
In the absence of any such statement or undertaking by India, the federal government will have no choice except to make an executive determination that India is not discontinuing its efforts of waging war inside Pakistan.
The writer is a former caretaker federal law minister.
Published in Dawn, April 23rd, 2017