KULBHUSHAN JHADAV CASE (INDIA VS PAKISTAN)

CASE ANALYSIS

FACTS AND BACKGROUND

 According to the reports in the pakistani media, jadav joined the Indian National defence
Academy in 1987 as commissioned in the engineering branch of the Indian Navy After
the 2001 attack on the parliament of India, he started gathering information and
intelligence within India After 14 years of service he allegedly entered into intelligence
operations and established a small business in chaabhar in Iran.
 The death sentence handed out to Kulbhushan Jadhav, a retired Indian naval officer, by a
Pakistan Field General Court Martial (FGCM) on charges of spying and sabotage
activities in Karachi and Balochistan has sent shock waves across the country. Even the
staid Karachi newspaper Dawn, not usually given to hyperbole, called the death sentence
“unexpected,” while reporting the political reaction to the sentence.
 According to Pakistan, Jadhav was arrested during a counter intelligence raid by security
forces near the border area of Chaman in Balochistan when he illegally entered from Iran
on March 3, 2016. He was using an Indian passport in the name of Mubarak Patel.
 He was tried under Section 59 of the Pakistan Army Act and Section 3 of the Official
Secrets Act of 1923, charged with spying for India, working against Pakistan’s integrity,
sponsoring Balochi terrorism in the country and attempting to destabilise the state.
 The entire prosecution and trial process, starting from the arrest of Jadhav to the trial and
award of death sentence by a military court, has been shrouded in secrecy. The legality of
the trial by military court itself is questionable. In January 2015, Pakistan national
assembly reluctantly approved the 21st constitutional amendment that paved way for the
military courts, after the then Army chief General Raheel Sharif pressurised the members.
They are a testimony to the hold Pakistan army has over the civilian authorities.
 Pakistan Supreme Court ruled in August 2015 that secret military courts were legal and
could pass death sentences on civilians. Nine military courts have been constituted to try
 such cases. By end December 2016, the military courts have handed out death sentence to
161 persons accused of terrorism.
 Pakistan’s case is built upon information gleaned from his interrogation and on the basis
of Jadhav’s “video confession” recounting his work for India’s external intelligence
arm—the Research and Analysis Wing (RAW)—from 2013. There was the dubious
“confession” from Uzair Baloch, a notorious Lyari criminal gang leader of Karachi, who
was apprehended by the Rangers in Karachi in January 2016, that he was in contact with
Jadhav to create law and order situation in Karachi.

THE PROCEEDINGS

THE HAGUE, 15 May 2017. The public hearings on the request for the indication of provisional
measures made by India in the Jadhav Case (India v. Pakistan) were concluded today.The Court
will now begin its deliberation.A single round of oral observations on the request took place on
Monday 15 May 2017 at thePeace Palace in The Hague, the seat of the Court. During the
hearings, the delegation of India wasled by Dr. Deepak Mittal, Joint Secretary, Ministry of
External Affairs, as Agent. The delegationof Pakistan was led by H.E. Mr. Moazzam Ahmad
Khan, Ambassador of the Islamic Republic ofPakistan to the United Arab Emirates, and Dr.
Mohammad Faisal, Director-General (South Asia &SAARC), as Agents. The Court’s decision
on the request for the indication of provisional measures will be delivered at a public sitting, the
date of which will be announced in due course. THE HAGUE, 15 May 2017. The public
hearings on the request for the indication of provisional measures made by India in the Jadhav
Case (India v. Pakistan) were concluded today. The Court will now begin its deliberation. A
single round of oral observations on the request took place on Monday 15 May 2017 at the Peace
Palace in The Hague, the seat of the Court. During the hearings, the delegation of India wasled
by Dr. Deepak Mittal, Joint Secretary, Ministry of External Affairs, as Agent. The delegation of
Pakistan was led by H.E. Mr. Moazzam Ahmad Khan, Ambassador of the Islamic Republic of
Pakistan to the United Arab Emirates, and Dr. Mohammad Faisal, Director-General (South Asia
&SAARC), as Agents. The Court’s decision on the request for the indication of provisional
measures will be delivered at a public sitting, the date of which will be announced in due course.

ISSUES RAISED IN THE CASE

There were four major issues raised in the ongoing ruling the kulbushan case:-

 The ICJ ruled that the dispute does fall under its jurisdiction as the dispute between India
and Pakistan is indeed to do with the Vienna Convention.
 The ICJ then turned to India's contention that Pakistan failed to provide Jadhav consular
access and it agreed that under the Vienna Convention, failure to provide such access was
indeed an issue.
 The ICJ cast aside Pakistan's argument that a 2008 bilateral agreement it and India
renders ICJ without the jurisdiction to rule in the case.
 India had expressed the fear that Jadhav might be executed even while the hearing at the
ICJ was on. The ICJ ruled that there is the possibility of "irrevocable prejudice to the
rights of Jadhav. In its plea to the court.

ARGUMENTS OF INDIA

Harish Salve representing India in the ICJ made the following arguments:-

 Kulbhushan Jadhav has not got the right to get proper legal assistance and the right to
consular access. There is an immediate threat to him to be executed even before a
decision is passed.
 The execution of the death sentence cannot be done while this court is hearing the appeal.
Else, it will be a violation of the Vienna Convention. The rights of Article 36 of the
Vienna Convention on Consular Relations are sacrosanct, Salve said, citing the
International Covenant on Civil and Political Rights (ICCPR) that recognises that no one
can be arbitrarily be deprived of their lives. India had not been given the copy of the
charges filed against Jadhav.
 “The graver the charges, the greater the need for continued adherence of the Vienna
Convention. Jadhav has been in judicial custody without any communication with his
family,” said Salve, adding, “The need for a wholesome compliance is greater when
charges are serious. We want appropriate legal representation for Kulbhushan Jadhav,”
he said.
  Human rights treated as “basics” all over had been thrown to the wind by Pakistan and
the trial had been vitiated, India argued. Pakistan had denied India its 16 requests for
consular access. Not just had all requests for consular access fallen on “deaf ears”, the
trial was conducted without providing Jadhav his rights. Pakistan did not even respond to
Jadhav’s mother’s pleas to see her son, India told the court.
 Jadhav was kidnapped from Iran where he was involved in business activities after
retiring from the Indian Navy. He had no connection with the government. Pakistan
Foreign Office has made “baseless, contrived and propaganda- driven allegations”
against Jadhav.
 India, whose request for consular access to Jadhav was turned down 16 times, had
approached the ICJ on May 8, accusing Pakistan of violating the Vienna Convention and
conducting a "farcical trial" for convicting Jadhav without a "shred of evidence",
following which the court had stayed his hanging.
 India added that all requests for consular access fell on ‘deaf ears’ and that India was
afraid that Jadhav would be executed before its argument was heard.
 India also questioned Jadhav’s confessional video, and the trial he got in Pakistan’s
military custody. India pointed out that even now, Jadhav didn’t have legal representation
at this stage of the trial.

ARGUMENT OF PAKISTAN

Khawar Qureshi Represented Pakistan in ICJ made the following arguments:-

 India’s application on Jadhav, who was sentenced to death by a Pakistani military court
on charges of espionage and subversive activities last month, was “unnecessary and
misconceived” and must be dismissed.
 India has seen it fit to use the International Court of Justice as a stage for “political
theatre” but “we will not respond in kind”. Pakistan argued that India had been unable or
“perhaps more accurately unwilling to provide” an explanation for Jadhav’s passport
which has a Muslim name on it. “We submit that India’s silence is telling. Indeed. India
could and should have responded to a letter of request dated January 23, 2017, seeking
 India’s assistance to investigate the criminal activity and links with people of India which
commander Jadhav has revealed,” Faisal said.
 Faisal alleged that India appears to have been in hyperdrive mode to brief its press that
Jadhav took early retirement and was kidnapped in Iran from where he was brought to
Pakistan to give a false confession presumably, Faisal alleged.
 Vienna Convention provisions on consular access were not intended for a “spy” involved
in terror activities. On India invoking the Vienna Convention, Qureshi said, “The Vienna
convention article 36 which adopted to set up standards of conduct particularly
concerning communications and contact with nationals of the sending state which would
contribute to the development of the friendly relations among nations…the observation
we made immediately is this is unlikely to apply in the context of a spy, terrorist send by
a state to engage in acts of terror.”
 India has sought to persuade this court that Pakistan intends to execute Jadhav within
days. “Simply by referring to the clemency process available as a right to commander
Jadhav. A period of 150 days is provided for in this regard which even if (it) started on
April 10, 2017, which is the date of conviction at first instance, could extend to well
beyond August 2017 There is also, of course, the potential for the writ petition of the
High Court to be invoked as we believe India must be well aware,” Pakistan lawyer
Khawar Qureshi said.
 Meanwhile, Pakistan countered by stating that the Vienna Convention didn’t apply to
'spies' involved in terror activities. They said that India’s application must be dismissed
on three counts - there is no agency, relief sought is manifestly unavailable and the
jurisdiction is limited. Islamabad added that India hadn’t given a sufficient argument to
explain Jadhav’s passport which bore a Muslim name, that Jadhav was given a fair trial
and that the allegation that Jadhav was kidnapped from Iran was far-fetched.
 Pakistan went on to accuse India of using the ICJ as a ‘scene of political theatre’.
JUDGEMENT

 The International Court of Justice (ICJ) ruled in favour of India on the case pertaining to
alleged Indian spy Kulbhushan Jadhav, adding "India should get consular access to its
national".
 Judges at ICJ ruled in a unanimous and binding decision that Kulbhushan Jadhav must
not be executed by Islamabad until they have had time to pass final judgement in the
case.
 “Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed
pending the final decision in these proceedings," said the court's president Ronny
Abraham. He also said that Pakistan cannot hang Kulbhushan Jadhav and added India
must be given consular access to the 46-year-old.
 The UN's top court ordered Pakistan to inform the tribunal that it has implemented the
decision, and stressed that ICJ decisions are binding on all member states.
 The ICJ, the principal judicial organ of the United Nations, delivered its order on the
request for the indication of provisional measures made by India in the Jadhav Case
(India v. Pakistan).
 In case Pakistan is defiant of the ICJ's order, India can take its case further to United
Nation's Security Council.
 At the outset, the Court headed by President Ronny Abraham began by ruling that it has
prima facie jurisdiction under Article I of the Optional Protocol. Article I provides that
the Court has jurisdiction over “[d]isputes arising out of the interpret ation or application
of the [Vienna] Convention”. The Court noted that the parties have differed on the
question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It
further noted that the acts alleged by India, i.e., the alle ged failure to allow
communication and provide access to him, appear to be capable of falling within the
scope of the Convention. The Court further observed that the existence of a 2008 bilateral
Agreement between the Parties on consular relations do es not change its conclusion on
jurisdiction.
 The Court then ruled that the “rights alleged by India are plausible”. It observed that the
rights to consular notification and access between a State and its nationals, as well as the
obligations of the detaining State to inform the person concerned without delay of his
rights with regard to consular assistance and to allow their exercise, are recognized in
Article 36, paragraph 1, of the Vienna Convention
 Further, noting that there exists a risk of irreparable prejudice and urgency, the Court
observed that the mere fact that Mr. Jadhav is under a death sentence and might therefore
be executed is sufficient to demonstrate the existence of a risk of irr eparable prejudice
and urgency, the Court observed that the mere fact that Mr. Jadhav is under a death
sentence and might therefore be executed is sufficient to demonstrate the existence of a
risk of irreparable prejudice to the rights claimed by Ind dia. It further noted that Pakistan
had given no assurance that Mr. Jadhav will not be executed before the Court rendered its
final decision. In such circumstances, it was satisfied that there existed urgency in the
present case. It then went on to notice the establishment of link between the rights
claimed and the provisional measures requested, observing that the measures requested
are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna
Convention, are preserved.