India-Pakistan bonhomie and the need for a mutual legal assistance treaty

Why is Pakistan in no hurry to conclude the Mutual Legal Assistance Treaty (MLAT) concerning criminal matters with India. There are a host of reasons behind this and the draft that was sent by India in 2005 and 2012 continues to remain pending or in the cold storage.

One must also note that in the absence of the MLAT the visit by the Joint Investigation Team to India to probe the Pathankot attack does not have legal sanctity. V Balachandran, former officer with the Research and Analysis Wing who retired as a Special Secretary, Cabinet Secretariat, Government of India explains to OneIndia the reasons why Pakistan has been slow in concluding the MLAT.

Concluding MLAT would open up a can of worms:

On August 5 2014, the Minister of State for Home Affairs told the Lok Sabha that
India had signed the 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. However a response from Pakistan was still awaited.
Balachandran points out that Pakistan would be in no hurry to conclude the MLAT.

Concluding the MLAT would mean sharing of necessary information which could range from voice records, communication details etc. India had successfully obtained these details in the 26/11 case through the FBI after it invoked the MLAT with the US.

Does the JIT visit have legal sanctity:

Balachandran says that under the Code of Criminal Procedure, the powers of investigation lies with the respective police station. In the case of the Pathankot attack, it is the NIA which has the powers to probe the case since it was handed over to the agency by the Punjab government. However the JIT does not have the jurisdiction to probe the matter here.

Has the Punjab government issued a specific notification empowering the JIT to probe the Pathankot case. There is no such indication. However the NIA has pointed out that it is interacting with the JIT under the extant legal procedure. If this is in place there is no issue.

However this could be restricted to giving a presentation and taking them to specific parts of the air base where the attack took place. However there could be a problem where the questioning of witnesses is concerned. The problem would occur if the witnesses decide to contradict themselves.

It is yet to be made known if the JIT had applied for specific permission to record the statement of the witnesses. Section 168B of the CrPC specifies the procedure to be followed while recording of witness by a foreign country. The JIT would have had to obtained specific permission from the government of India in case it wanted to record the statement of the witnesses.

Once such permission is granted, then the government would have to forward the same to the Chief Metropolitan Magistrate who in turn would have had to appointment a magistrate to conduct the recording of the statements. Once the statements are recorded then it would be sent back to the Government of India which in turn would send it to the foreign country. It is not clear whether such a procedure was followed by the JIT.