FAQ: India’s Legal Options at ICJ in Kulbhushan Jadhav Case

ICJ’s stay order in the Kulbhushan Jadhav case offers India space to rescue the Indian national by diplomatic means. (Photo: Harsh Sahani/ The Quint)

It is now well known that India has finally approached the International Court of Justice (ICJ) in the Kulbhushan Jadhav case.

But contrary to popular perception, India has not approached the ICJ on the merits of the issue, which of course is not amenable to the jurisdiction of the ICJ anyway, but rather on the denial of consular access to Jadhav by Pakistani authorities.

Though there has been a deluge of write-ups on the subject, there are a few things that remain hazy for the layperson and keep cropping up time and again, therefore this piece shall attempt to clear that fog to an extent, in simple terms.

Also Read: ICJ to Hold Public Hearing in Kulbhushan Jadhav Case on 15 May

(Photo: The Quint)

Why hasn’t India challenged the court-martial verdict rendered against Jadhav at the ICJ?

Well, simply because a court-martial is not challengeable before the ICJ, and the only way to appeal a court-martial verdict is before an appellate body of army officers, constituted under Section 133-B of the Pakistan Army Act.

The said remedy is, however, quite incongruous since the verdict has been ‘confirmed’ and approved by the Chief of Army Staff of Pakistan, so to expect officers junior to him to examine a verdict approved by the highest military authority is a bit far-fetched.

Why can’t the court-martial verdict be challenged in a civil court or tribunal in Pakistan?

The Pakistan Army Act, unlike military laws in actual democracies, bars the jurisdiction of the real judiciary over military courts by virtue of Section 133, meaning thereby, that courts-martial can behave like extra-constitutional entities, manned by personnel who are not trained in law and who are not amenable to judicial review.

The provisions of the Pakistan Army Act are draconian and courts-martial are not independent, impartial and competent, since these function under the aegis of the army and are manned by persons who have no inkling of legalities, thereby contravening the spirit of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

Why didn’t India approach the ICJ in Saurabh Kalia’s case?

Because the ICJ cannot be approached in such cases, and as stated above, even Jadhav’s case on merits cannot be taken to the ICJ.

To take up issues before the ICJ, the consent of both the states (India and Pakistan) is required, which, clearly, is not possible.

Many would not know that the Gujarat High Court in 2011, in a Public Interest Litigation filed by the Late 1971 War Hero, General Aurora, had directed the Government of India to approach the ICJ on the subject of Prisoners of War and atrocities by Pakistan in 1971. However, this aspect of the High Court decision was stayed by the Supreme Court on a petition filed by the Union of India.

Also Read: Kulbhushan Jadhav Case: India Hands Over Mother’s Appeal to Pak

(Photo: The Quint)

What is the nature of India’s petition filed at the ICJ?

India has filed a petition alleging contravention of the Vienna Convention on Consular Relations (VCCR), which forms a part of optional protocol wherein one state, without the consent of the other, can approach the ICJ.

How does India’s petition at the ICJ help Jadhav?

Well, for starters, if it succeeds, it shall result in consular access to Kulbhushan Jadhav.

Secondly, it provides breathing space and gives India leverage to plan a diplomatic strategy on the issue since it results in the execution being put in abeyance till the issue of consular access is finally decided by the ICJ.  

This was the best that India could do in the given circumstances, and the government should be congratulated for succeeding in its endeavours, at least for the time being.

Also Read: Kulbhushan Jadhav: Pakistan Stands on the Wrong Side of Law

Has India ever sentenced a Pakistani national to death for spying?

Death is not prescribed for spying in India. Moreover, India does not try civilians in military courts. Also, even in cases of courts-martial in the defence services, there is strong oversight by courts (other than the Military Court) in India.

Is there any hope if the Military Appellate Court rejects the appeal?

In case the appellate court of the Pakistan Army rejects the appeal filed by Jadhav, the federal government of Pakistan can still annul the proceedings of the court-martial and the scope of presidential pardon also remains open. Much would depend upon the diplomatic backchannels and skills of the personalities involved, which almost always require some give and take in such situations.

Also Read: Kulbhushan Jadhav: Pak’s Military Courts Have No Inkling of Law

(Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and founding President of the Armed Forces Tribunal Bar Association. He is also Member of the International Society of Military Law and the Law of War. He tweets @SinghNavdeep. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)