VAPPALA BALACHANDRAN | 29 MARCH, 2016
Pak JIT Visit Not Supported by Law, Music Only for US Ears?
MUMBAI: The first point to be considered is whether Pakistan’s 5 Member Joint Investigation Team’s (JIT) visit to India has any legal sanction?
India has not yet concluded a Mutual Legal Assistance Treaty (MLAT) in criminal matters with Pakistan. This was confirmed on August 5, 2014 in the Lok Sabha by Minister of State Kiren Rijiju who said that we had signed MLAT in criminal matters with 38 other countries. He said that we had given a draft in 2005 to the Pakistan foreign office followed by a fresh one in 2012 when our Home ministers had met in Islamabad. Pakistan, however, has not responded to this draft so far.
There are reasons why Pakistan is in no hurry to conclude a MLAT with India as it will open a can of worms for them. It may be recalled that the Mumbai Crime Branch was able to obtain conclusive evidence on 26/11 terrorists’ equipment and communications only by invoking our MLAT with the US through which the FBI’s digital Forensic laboratory could give us evidence that a fictitious Karak Singh had booked and paid for all these VoIP equipment used in the terror attack.
The second legal ground for this visit could have been the SAARC Regional Convention on Suppression of Terrorism, signed in 1987 and ratified in 1988. It provides for exchange of information, intelligence and expertise. It had also calls upon member states to deny sanctuaries for terrorists and for extraditing them to face prosecution. For all practical purposes this is a dead letter for us with our experience relating to Pakistan. No progress has been achieved on this measure despite high level summit meetings. The September 2006 Havana Agreement between India and Pakistan to set in motion a Joint Anti-Terror Mechanism (JATM) has also failed.
Thus we have to examine the normal law in India to see whether the JIT’s investigation could be justified. The powers of investigation under our Criminal Procedure Code are with the Officer in charge of the concerned police station. Jurisdiction is the most important factor for investigation. Under S. 36 the Superior Police officer also can do the investigation. In this particular case, the Punjab Government has agreed to hand over the case to the National Investigation Agency (NIA). Thus the NIA can do the investigation but certainly not the Pakistan’s team which has no jurisdiction.
There is no indication that the Punjab Government has issued any notification to empower the Pakistan team to do their investigation. Hence one wonders under what legal ground the NIA could produce witnesses for being examined by the Pakistani team as is reported in the media. What if they refuse to come?
The NIA is reported to have said that “JIT and NIA teams are interacting under the ‘extant legal procedures’ of India and Pakistan”. Have any such procedures been already established between our countries? There could be no objection if the JIT is given a conference room presentation by the NIA on the evidence collected by them. There might also be no great objection if they are taken round the Air Base to indicate how the terrorist acts were committed. But giving them access to NIA’s witnesses might prove to be a problem.
A media report in a National daily on March 29 said that the JIT “will be given access to some witnesses, including Salwinder Singh”. Another national daily amplified this on the same day: “India plans to provide the Pakistani team access to all the witnesses in the case but not to personnel from the NSG or BSF. The witnesses include Punjab Superintendent of Police Salwinder Singh, his jeweler friend Rajesh Verma, cook Madan Gopal and 17 injured people”. Supposing they now contradict themselves with their versions originally recorded by NIA?
It is not clear whether the Pakistan’s JIT will record their statements in writing. If so, it might violate S. 166B of our Criminal Procedure Code which lays down the procedure for investigation in India on a request from a foreign country. The correct procedure is for Pakistan government or their competent court to apply to the Government of India for recording evidence. There is no indication that Pakistan JIT has sought any such permission from the competent Indian judicial authorities or Government of India under S. 166B. Upon receiving this letter, Government of India will forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate who will appoint a competent magistrate for doing this enquiry. The latter will summon the person (witness) before him and record his statement or cause the document or thing to be produced. The Magistrate also has the option to depute a police officer for investigation, who shall investigate into the offence in the same manner, as if the offence had been committed within India. It further says that all evidence so collected and duly authenticated shall be forwarded by the Magistrate to the Government of India for transmission to that foreign government or court.
As this is written, the JIT has just landed in Pathankot. Our visual media has boisterously announced that the NIA, by giving them access to our witnesses, has played a masterstroke as they can demand direct access to Maulana Masood Azhar. What if the Pakistan government would tell us at that time that we should follow the equivalent of our Section 166B and route it through their government? Why this misplaced hype?
For those who are overly optimistic about the success of such visits as the present JIT, I would recommend for their reading Stev Coll’s “The Back Channel- India and Pakistan’s secret Kashmir Talks” published in the New Yorker (March 2, 2009): “In the face of Indian complaints, American officials have sometimes taken a protective posture toward the I.S.I. and the Pakistan Army. Pakistan’s generals have become adept at pursuing both peace talks and covert war simultaneously, and at telling American interlocutors what they wish to hear”. We should keep this in mind if we are allowing such visits only to please Washington DC to allow us a position at their high table.
(Vappala Balachandran is an Indian national security intelligence specialist and a former Indian police officer. He retired as Special Secretary, Cabinet Secretariat, Government of India)