Kulbhushan Jadhav case: May need to revisit ICJ; someday we’ll have him back, says Harish Salve

Senior Advocate and Queen’s Counsel, Harish Salve on Saturday commented that India may have to go back to the International Court of Justice (ICJ) for consequential directions over the Kulbhushan Jadhav case, given that the Pakistan Government “has just not moved ahead” following the ICJ’s july 2019 ruling .

Salve made the remark while rendering the concluding lecture for the Dattopant Thengadi Lecture Series organised by the Akhila Bharathiya Adhivakta Parishad. Salve’s speech focused on the Kulbhushan Jaddhav case and his experience at the ICJ, reports legal news website BarandBench.com.

The senior lawyer had successfully argued for India before the ICJ to prevent the execution of Jadhav, who was sentenced to death by a Pakistani Military Court on charges related to espionage.

Whereas the Indian Government may have saved him from the gallows, Kulbhushan Jadhav continues to remain in the custody of Pakistan.

“It has become a huge ego problem in Pakistan. We were hoping they would let him (Jadhav) go. They haven’t. We have written 4-5 letters. They just keep denying…" said Salve.

In July last year, the ICJ had rejected Pakistan's stance that their domestic laws had provided adequately for review and reconsideration of Jadhav’s conviction and death sentence by a domestic military court.

Salve pointed out that the ICJ ruled that there must be "effective review and reconsideration” if necessary, by amending the law. The court’s ruling saw to it that Pakistan gave Jadhav consular access.

“…but it is too late”, Salve said, given that Jadhav was entitled to access to the Indian consulate from the time of his arrest as per the Vienna Convention.

“We have now been in a tussle with Pakistan trying to get them to set up a machinery (for adequate review and reconsideration)”, Salve said.

He went on to speak on the stance now taken by the Indian government, i.e. “An effective review must correct the breach in (the Vienna) Convention”.

"The Convention required consular access right in the beginning, upon his (Jadhav's) arrest. He should have been given consular access before his confession was recorded. And if you have failed to do so, that confession has to be disregarded. If they disregard this confession, there will be no evidence left", Salve added.

He spoke on the Pakistan Government’s refusal to show the implementation of any effective review and reconsideration measures as far as Jadhav’s conviction and sentence are concerned.

Salve further said that till date, Pakistan has not shared the FIR, the chargesheet or the military court judgment imposing the death penalty on Jadhav, which had prompted the Indian Government to approach the ICJ.

Salve went on to opine, "I think they (Pakistan) have a serious problem in their hands. Other than the confession, they have nothing (to incriminate Jadhav).”

Harish Salve rendered his address via video conference from London.

Salve informed that the Indian authorities had also urged the Pakistan Government to share the evidence collected in their case against Jadhav, so that the Indian Government may offer legal assistance to Jadhav. "They refuse to part with it”, Salve said.

While domestic courts in Pakistan may find that there is enough to implicate Jadhav, Salve asserted that, “They (Pakistan) know if it comes to a fair consideration and a fair trial, they will have no choice but to release him, and that will be a big loss of face.”

In this backdrop, Salve opined that India may have to revisit the ICJ in order to secure justice for Jadhav.

“With the way things are going, we may have to be back in the ICJ someday, trying to get justice for Jadhav," said Salve

He added, "But we have at least brought it (the case) this far: They (Pakistan) cannot put him (Jadhav) to death. They are now concerned that our consular officers have to be given access now. They have to keep him in a good condition They must also be seeing that they can avoid this problem for a while, but someday, India will insist…”

During his talk, Salve also opined that the move to initiate criminal proceedings against Jadhav, while denying him consular access, along with Pakistan’s insistence on being allowed to investigate the case in India “was a clear attempt to try and build a counter-narrative against India,” says the report published by BarandBench.com.

Salve added, “India has always complained that Pakistan doesn't allow access in investigation into terrorists involved in dangerous acts of terrorism in India… that these terrorists live in Pakistan is not in dispute."

To try and build a counter-narrative, they filed an FIR against Jadhav, Salve said. The confession on which the Pakistan Government had based its case against Jadhav was also criticised by Salve as being vague and jumbled.

After Jadhav was sentenced to death and when it became apparent that he may be sent to the gallows without affording him any opportunity to appeal the same, the Union External Affairs Ministry consulted with Salve to approach the ICJ.

As part of his preliminary research, Salve said that he also looked into when a country had the courage to “defy the Vienna Convention.”

"The answer was 'never before’”, Salve said.

Salve observed that one of the challenges he faced during the case was to ensure that Pakistan does not catch wind of India’s decision to move the ICJ too soon.

If that were to happen, Salve pointed out that Pakistan could have moved to execute Jadhav before the dispute was taken to the ICJ by the Indian government.

As he concluded his main speech, Salve also remarked, “…someday, we shall have him back in India.”