One of the fundamental principles of strategic communications is to avoid an overkill. In South Asia, however, there is a tendency to raise the pitch on any issue to a level that an eventual climb-down becomes very difficult. Because of the commitment trap in which the players get caught, a climb-down causes deep embarrassment, even loss of face. Worse, it comes with a price tag in terms of political cost. Not only does this complicate the negotiations for a deal, it also gives the other side an impression that they are in a far better bargaining position than they actually are.

The Indian reaction to the death sentence pronounced by a Kangaroo court in Pakistan – the Pakistanis call it a Field General Court Martial (FCGM), which as Kangaroo courts go, surpasses even the abominable Military Courts – certainly conveyed the seriousness with which the political establishment and the public viewed the predicament of the former naval officer, Kulbhushan Jadhav. It also underscored the commitment of the Indian state and society to prevent this miscarriage of justice and bring Jadhav home.

On the Pakistani side, the hype and hysteria that was manufactured by embedded ‘journalists’ of the ‘Media Corps of the Pakistan Army’ and its endorsement by not just the puppet Parliament and the equally emasculated civilian government, but also by the real government – the Corps Commanders – have sent out an unequivocal message that there will be no compromise over Jadhav. After Jadhav goes through the formality, rather a farce, of appealing his sentence, he will hang.

The question now is: given the polar opposite stands of the two countries, is there any possibility of a spy swap? Or will both countries decide to sacrifice pawns and use that to advance their game, not just at the strategic and bilateral level, but also in the field of domestic politics?

In the case of India, until the Modi government came to office, the general attitude was one of disavowal of people caught on the wrong side of the border. Other than showing pro forma interest in some of the cases involving Indians in trouble anywhere in the world, there wasn’t much interest taken in providing legal assistance, much less in making any effort to get people repatriated.

The Modi government, and in particular the External Affairs Minister Sushma Swaraj, changed the rules of the game and made it a pillar of foreign policy to go out of the way to provide relief and assistance to Indians caught up in legal or other troubles abroad. India’s interest in Jadhav is, therefore, not so much because he is some sort of a James Bond whom the Pakistanis have caught and who the Indians want back, but more because of the Indian policy of standing up for its citizens anywhere in the world.

A farce of a trial

The charges against Jadhav are in any case laughable. It seems that the Pakistanis have followed their standard operating procedure of attributing every terrorist incident that they could not solve, and some that they claimed to have solved, on Jadhav. There are innumerable cases where the Pakistanis have blamed the same terrorist incident on multiple people, every time claiming that they have finally cracked the case.

The fact that Pakistan has denied consular access to Jadhav is a clear indication of not just bloody-mindedness, but also of preventing the truth of the circumstances under which Jadhav lost his freedom from coming out. If at all Jadhav was responsible for all that he has been charged with, there is no chance whatsoever that he would ever go into Pakistan. While the Pakistanis claim that the FGCM adhered to the laws of evidence, not a single scrap of credible evidence (other than a forced confession that wouldn’t stand scrutiny in any half-decent court anywhere in the civilised world) has been produced in the public domain.

But belabouring over the inequity of the farcical trial is utterly pointless because logic, good sense and legal niceties don’t count for anything while dealing with Pakistan. In the case of Jadhav, the Pakistanis saw in him an opportunity to try and sell their narrative that the fifth uprising in Balochistan, which started from around 2002-03, was the handiwork of India.

As a propaganda prop, Pakistanis have squeezed Jadhav for all he’s worth. But their cooked-up story, which revolves around Jadhav, didn’t really get much traction in the international community. Other than occasionally parroting his name to score cheap debating points in TV shows, Pakistan had little or no use for Jadhav. Of course, releasing him was not an option because, after all the publicity surrounding Jadhav’s ‘arrest’ and his televised ‘confession’, Pakistan was in a bit of a commitment trap of its own.

Exchanging ‘spies’

With both sides ensnared in a commitment trap, finding a middle ground will take some doing. One option is a spy swap. Reports in the Pakistani press claim that Indian Intelligence agents trapped an ISI official in Nepal and have taken him into custody. The story of this officer, Mohaamad Habib Zahir, is that he was a retired Pakistan Army Lieutenant Colonel who had been called to Nepal for a job interview. But given Pakistan’s use of Nepalese territory for sabotage, subversion, smuggling fake Indian currency and terrorists, it is entirely possible that the Indian Intelligence caught Habib while crossing over into India.

Until now, if at all Habib is in Indian custody, his arrest has not been declared. Perhaps, the Indian government thought that they could shake down whatever information they needed from this guy and then swap him for Jadhav without making too much of a song and dance about it.

There is also a problem related to declaring Habib’s arrest. Unlike Pakistan, there is no provision for a summary Kangaroo court in India that could mete out to Habib the same treatment that has been given to Jadhav. While a confession could easily be extracted from Habib, and televised à la Jadhav, the rest of the legal process would be long and torturous but would accord due process to even a Pakistani military officer engaged in directing terrorist activities in India.

As long as the Pakistanis know that Habib is in Indian custody, and chances are that they know, little purpose will be served by announcing his arrest. For propaganda purposes, India has many other Pakistanis who can be used just as effectively to expose Pakistan’s undeclared war on India.

Although keeping quiet about Habib will deny the Indian public the vicarious pleasure of a tit-for-tat, the fact is that India will have greater flexibility by not declaring Habib’s arrest than it would by announcing that he is in Indian custody. India could exchange him, dispose him off, or do whatever else is required to be done in terms of payback to Pakistan without the fetters of law. Sure, this is an ugly business, but when dealing with ugly people, the normal niceties have to be dispensed with.

Given that there is no set protocol or mechanism for swaps of citizens, or as the case may be, spies, a lot will depend on the relative value of the people who are proposed to be swapped. Although Jadhav was no longer in the armed forces and exchanging a civilian like him for a spy and saboteur like Habib isn’t an ideal deal, the Indian government might just be ready for such a swap because of the high-profile nature of the case.

The question is whether Pakistan would agree to such a swap. This will depend on how much value Habib has for Pakistan, not just as a spy but also as an armed forces officer. Sacrificing him won’t be easy because it will send a negative signal to others. On the other hand, swapping him will also not be easy because of political reasons as well as the possibility of public excoriation and charges of a sell-out to India.

In case Habib is a pawn that Pakistan is willing to sacrifice, there will be no swap, at least not one involving Habib. But if Pakistan decides it is worth swapping Jadhav for Habib, then a deal will become possible. The negotiations will of course not be held in full public glare and it is possible that it will not be a simple one to one swap. Even so, it is highly unlikely that there will be any sort of deal in the next year or year and a half because Pakistan is going to elections next year — there is no question of the government giving its nod to such a high-profile swap and opening itself to charges of being soft on India, or worse, buckling under Indian pressure.

Of course, if there is no deal, and Pakistan commits a ‘premeditated murder’ of Jadhav, there will be some unpleasant consequences that will only push the two countries further down the slippery slope they are already on.