Has India taken the right step in deciding to implead itself as a party in the law suit filed in the United States by the relatives of two Americans who died during the 26/11 attack? Speaking to a couple of legal experts and also sources in the Intelligence Bureau, it appears that this exercise may become counter productive if the impleading application does not specify or touch upon a couple of important issues.
This exercise has been planned by the Indian government following the revealations by Tahhawur Rana who had nailed only the ISI and the government of Paksitan while leaving out the Lashkar-e-Tayiba. India feels that they could ride on the Rana confession in order to nail the Pakistanis who have always maintained their establishment had nothing to do with it. A suit had been filed in the US court by the relatives of Rabbi Gavriel Noah Holtzberg and his wife Rivka. In the suit they have sought action against Hafiz Saeed, the ISI chief among others. Substantiating their claim they had quoted the David Headley confession in which the ISI’s role is spoken about at great lengths.
India now feels that it would better their chances of proving a point against Pakistan if they implead themselves as parties in this suit.
Legal experts say that such action could swing both ways. India will need to take the judgment as it comes and will have to accept a verdict that has been delivered as per the laws in America. Moreover in case the accused persons are acquitted or a lesser sentence awarded, then they could always object to another proceeding in India. Moreover the weightage of a verdict by an Indian court would always carry lesser weight when compared to a one delivered by an American court in the eyes of the international community. It is also a known fact that the US being a super power can always exercise more might over Pakistan in comparison to India in issues pertaining to international laws and also extradition.
Experts say that the application in such a case needs to be drafted with extreme care. The application must read that India is not submitting to the jurisdiction of the US court and the role India needs to play is more of a witness. Moreover India would do well to manipulate proceedings to an extent that the US court suo motu summons us as witnesses in the case. Moreover in the application we must mention that we are not becoming a party to the proceeding or submitting to the jurisdiction. We should state that we are there to provide inputs since that case directly concerns us. In other words the Union Carbide case ought to be taken as an example. In that case the prosecution was taking place in the US on class action (representative suit for more than one person). India had however taken a stand that such prosecution cannot continue since the incident has occurred on Indian soil and it is submitted to the Indian jurisdiction.
However if at all the suit is decided in favor of the petitioners in the US, then India will really have nothing to worry about. The problem arises if they lose the case or even a lesser sentence is handed out, since India has stuck to the stand that these accused should be punished with the maximum sentence. If this case does not go in favor of the petitioners and India stands there as a party, then it would become very difficult to raise any further claims against the Pakistani establishment.
Sources say that India would wait a while before making the next move. The US court has already issued summons to Major Genral Ahmed Shuja Pasha, Hafiz Saeed and Zaki-ur-Rehman Lakhvi. India says that it could provide valuable inputs based on its own investigation only to make the case stronger against these people. The ISI has however been trying to convince the US to go slow on the summons since it could turn into a major embarrassment. India would however do its best to lend support to the petitioners in the law suit and could also provide inputs through a back channel as it is believed that with the Rana confession and trial round the corner, this is the best attempt to put the Pakistanis on the back foot.