ICJ RULING ON KULBHUSHAN SUDHIR JADHAV-A HEARTENING REVELATION FOR THE NATION

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The two year long drawn case which was under review by the Hon’ble ICJ at Hague,Netherlands regarding the conviction of Kulbhushan Jadhav in connection with alleged espionage and disruptive activities in Pakistan came as a shot in the arm for the nation as ICJ demolished Pak arguments point by point and clause by clause. This article is an attempt to analyse the ICJ judgment which gave a fresh whiff of breath to the lndian stand that Mr Jadhav has been prosecuted in a very unfair manner by the kangaroo court of Pakistan belying all fundamental parameters of an ideal jurisprudence.

One of the moot points raised by the Indian side was the denial of consular access to Mr Jadhav which was totally a gross violation of the Vienna Convention. The Court here observed that despite repeated requests by India to provide consular access the same was turned down by Pakistan and hence Pakistan was under an obligation to conduct a thorough and effective review and reconsideration of the conviction and sentencing of the alleged accused, at its convenience, to ensure that there are no violations of rights as set out in Article 36 of the Vienna Convention.

ARGUMENTS AND OBSERVATIONS BOTH AGAINST AND IN INDIA’S FAVOUR

  • VIOLATION OF CONSULAR ACCESS  RIGHTS :

The court held Pakistan guilty for violation of Vienna Convention on Consular relations 1963 by not informing Mr Jadhav, without delay about his rights to consular access In accordance with Article 36(1)(b) of the Vienna Convention which reads as follows :

“if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph”

  • A FULL AND THOROUGH REVIEW OF THE SENTENCE TO BE CONDUCTED:

The court further directed that the execution order of May’17 issued by the Military Court of Pakistan stands suspended till such time until full and thorough review and reconsideration of the sentence are probed in line with accepted norms of a just jurisprudence.

  • SENTENCING NOT A VIOLATION OF THE CONVENTION :

Though, at the same time the Hon’ble Court took cognizance of the fact that the conviction and sentencing of MrJadhav does not constitute violation of Article 36 of the Vienna Convention as purported by India’s Contention.

  • NEGATION OF “RESTITUTIOINTEGRUM” CONCEPT BY THE ICJ :

The ICJ also rejected the Indian claim based on the maxim “RestitutioIntegrum” of annulling Pakistani military Court’s conviction stating that such conviction cannot be considered as breach of the Vienna Convention.

  • EXCLUSION OF ESPIONAGE NOT AN EXCEPTION FROM RIGHTS OF CONSULAR ACCESS :

The Court refuted the Pakistani argument that persons accused of espionage do not come under the purview and the resulting protection rendered by Article 36 of the convention.The Court observed that the Article 36 of the Convention has to be understood in the light of its context and purpose, and which purports that it does not exclude persons accused of espionage out of its ambit.

  • VALIDATION OF ADMISSIBILITY OF INDIA’S APPLICATION TO ICJ :

The objections raised by the Pakistani side against the admissibility of India’s application based on grounds of abuse of process was also quashed by the court by a 15:1 majority, only Justice Jilnai voting in favour of Pakistan.

  • BASIS OF 2008 BILATERAL AGREEMENT BETWEEN PAKISTAN AND INDIA GOVERNING CONSULAR ACCESS CLAUSE NOT TENABLE

The court pointed out that the clause of such a bilateral agreement does not tend to deny consular access to citizens arrested in another country due to political reasons.

CONCLUSION

It comes as a source of great pride that most of the view points from the Indian side were found to be in concurrence with the views of the Hon’ble judge and jury of the ICJ. It is a matter of being both joyous and proud that India’s stand was vindicated in the highest court of the world. The success of the just concluded proceedings of the ICJ by and large in the nation’s favour sends a strong message to Pakistan that it stands exposed in the eyes of the international community and jurisprudence and it now has to toe the line in accordance with the Customary International laws and treaties. A complete vindication of what India has been saying on the global forum and media that the prosecution of Kulbhushan Jadhav in Pakistan was initiated more out of political compulsions than any real merit in the case itself. In light of the above India can now hope for a final settlement which would be conducive to India’ self pride and the indefatigable notion that India never stands for anything unethical and illegal.

Submitted by –

Anushka Chaturvedi (Intern)