What’s the story of Kulbhushan Sudhir Jadhav’s case so far and how Pak is losing the claim?


It's been an honour and a privilege for me as an Indian to write this précis on our victory in saving the former Naval Officer Mr. Kulbhushan Jadhav's from execution, and dragging Pakistan after eighteen years to the International Court of Justice.

I am thankful as each and every citizen to Mr. Harish Salve and the present Government for winning the battle through rogue-diplomacy. And I wished it would have been possible, too, for the previous UPA Government to save our Sarabjeet Singh or Captain Kalia from the deadly gallows.

The last, not the least, words of the Judge of the ICJ were:

"…for these reasons the court first unanimously indicates the following provisional measures:

Pakistan shall take all measures at disposal to ensure that Mr. Jadhav is not executed,pending the final decision in these proceedings, And shall inform the Court of all the measures taken in implementation of the present order to unanimously decide that until the Court has given its final decision, it shall remain ceased of the matters which form the subject matter of this case."

This 46-year-old man was arrested on March 3, 2016 in Baluchistan (as Pakistan reported) on the grounds of alleging espionage in Pakistan territory, claimed to be an Indian spy for the India's Intelligence Agency and a terrorist.

From here, there emerged two tales of the same story: Pakistan claims he is an active (till he was arrested) commander serving in the Indian Navy and simultaneously, while staying inside Pakistan's territory, was spying for India. While on this ground, India states that he was serving in the Indian Navy BUT had taken an early retirement from the service and was possibly "abducted" from Iran, where he was doing some cargo business, by Pakistani agencies and was put to those charges with which Pakistan's military court penalised him to death on 10th April 2017.

With the arrests and court-proceedings (done without informing India), Kulbhushan Jadhav was denied 16 requests for the consular access to India (between 25 March 2016 and 31st March 2017). This means that according to Article 36 of Vienna Convention on Consular Relations, 1963, when a country arrests a "foreign-civilian", then on the civil-rights of that person, that country should make an immediate notification of the same to the foreign embassy or the Consulate of that particular country, which wasn't done! Along with this defiance by Pakistan, it also denied the visas of Mr. Kulbhishan Jadhav's parents who tried to visit their son. Now this proceeding at ICJ is only on the ground of violation to "consular access" in the arrest, trial and sentencing of Jadhav (here), but not on the "criminal-appeal". So here unless the verdict is given by the ICJ, the execution of Jadhav will not be done. But today, on 18th May, 2017, the verdict was given on the initial merits of the case that he shall not be executed, but the case still remains for further proceedings. So he shall not be released to India very soon.

But a strange fact that came up was when Pakistan, after so much in denial mode, decided to unpack some things for India: one it disclosed the prisoner's passport (Number: L9630722) but (strangely) with a Muslim name-a "Hussain Mubarak Patel", and that too without providing the same to the High Commissioner of India.

India, certainly with the motive to prevent the immediate execution, went for the Peace Palace, the home of the International Court of Justice (ICJ) in Hague in Netherlands, because India felt that the entire trial done by Pakistani court was illegal on many grounds. The concern over Pakistan Government authorising military courts to adjudicate civilians for terrorism related offences without charge of judicial supervision in internment centres was subsequently put forward by UN Committee Against Torture. Thus from the beginning when the case was tossed onto the ICJ, Pakistan was exposed to fabricate the entire court-proceedings against Kulbhushan.

Just after that, the UN went on bringing forth Pakistan's own legislation on the table- its Anti-Terrorism Act 1997, which "eliminates" legal protection against torture that are otherwise provided to convicts deprived of their liberty, like timely presentation before a Magistrate and possibility to exercise habeas-corpus petition. Thus what Pakistan clearly did was providing Kulbhushan's "confessions" which were recorded without the presence of such Magistrate. As consequence, those recordings were not agreed upon.

 So the deliberation happened between Pakistan's Attorney-General Ashtar Ausaf and India's former Solicitor General Harish Salve at the ICJ with each side given 90-minutes to present their case.

Now there were funny ludicrous allegations by Pakistan that generated laughter across the curious people all over the World when the case developed, which certainly earned Mr. Kulbhushan's sovereignty from that death-penalty (on May 8) and cornered Pakistan furthermore to a "shame". Pakistan had also committed another obnoxious deposition with the charges put forward by Pakistan's lawyer in the debate: he states Jadhav to be Indian spy/national and simultaneously claims India is not able to prove that he is Indian national. This, when shared by Mr. Harish Salve in Indian media-channels, created a huge laughter, though confusion along-with, across the nation. So that reprimand could come only when one is walking over a ground slipping down his feat.

So the followings are what India had put on the table with implications of the arrest:

  1. Jadhav had no links with the Government of India ever since he left the Naval service
  2. R&AW, the intelligence agency of India, has a norm that any spy it shall send to some other country, then his or her identity will first be removed. Here, India claims him to be a citizen of India and not such (spy) as Pakistan charged him as.
  3. A possibility of Jadhav's abduction from Iran could happen on Pakistan-Iran border, and what certain Media said were that it could be done by some paid groups like one Jaish ul-Adl, a Sunni-group, or by ISI, or since he had been working in a cargo business in Iran, he must have strayed into Pakistan waters and was arrested on the cause.
  4. Pakistan provided Kulbhushan Jadhav's passport to India but bearing a Muslim name. On the argument by Pakistan's representative at ICJ.

What Pakistan claimed the reasons why Kulbhushan Jadhav was in Pakistan:

  1. To spark some unrest in Balochistan with the separatists and sabotage the facilities there
  2. He had connections with the gunmen who had shot dead 45 Ismaili passengers in 13th May 2015 in Karachi
  3. Pakistan's interior Minister Nisar Ali Khan, when had a meeting with the Iranian ambassador in September last year, collected some evidence connected with Indian-sponsored terrorism in Pakistan and that dossier included Jadhav's name.
  4. Then he is also believed to be there to sabotage the recent China-Pakistan Economic Corridor (CPEC) which India has boycotted.

Now the debate in the Court on the rest of the grounds still remains to be conducted. So I hope that India wins the battle and Kulbhushan Jadhav returns back to his homeland safe and sound as soon as possible.

(by Sidhanth Majumder)

The author can be contacted at sidhanthm.123@gmail.com

The views reflected in this piece are that of the author and need not necessarily be that of TNT-The Northeast Today