Why India is Right in Not Rushing the Kulbhushan Jadhav Case

Pakistan tried its best to deny India the right of consular access but ultimately had to bow to the ICJ decision.

Kulbhushan Jadhav met Gaurav Ahluwalia, India’s Charge d’Affaires in Islamabad on Monday, 2 September, in a sub-jail in the city.

(Photo: The Quint/Kamran Akhter)

Three years and six months after he was abducted from Iran by Pakistani intelligence, and two years and five months after Pakistan’s army chief confirmed the death sentence for alleged espionage handed down by a secretly conducted Pakistani army court martial, Kulbhushan Jadhav met Gaurav Ahluwalia, India’s Charge d’Affaires in Islamabad on the afternoon of Monday, 2 September, in a sub-jail in the city.

And this was only after a clear directive from the International Court of Justice. Pakistan tried its level best to deny Jadhav and India the right of consular access but ultimately had to bow to the court’s decision.

The Ministry of External Affairs has issued a brief, preliminary statement. The operative part of the statement is:

“It was clear that Shri Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan’s untenable claims.”

These words clearly mean that during the meeting, Jadhav supported the charges that Pakistan has levied against him and India. The MEA implies that he did so because he appeared to be under pressure.

Jadhav Has Been Completely at Pakistan’s Mercy

The fact is that in the years that he has been in Pakistani custody, Jadhav has been completely at their mercy. The Pakistani intelligence agencies have had ample opportunity to put him under all kinds of physical and mental pressures to make him say what they have wanted him to say.

Indeed, they had succeeded in March 2016 itself to extract an incriminating video from him.

Significantly, after the meeting on 2 September, Jadhav was returning to Pakistani custody, and that too, would have adversely impacted him, adding to the pressure he is under.

Finally, as Pakistan recorded the meeting, Jadhav could hardly be expected to talk candidly, even if he was not under mental pressure.

Two Separate Cases Filed in Pakistan Against Jadhav

More importantly – and this has not been widely focused upon in India till now – two separate cases have been filed in Pakistan against Jadhav.

The first one was on charges of espionage, and it is in this case that he has been awarded a death sentence. The second case charged Jadhav with terrorism – it has not even begun.

Pakistan has claimed that it has not been able to proceed with it because India has not co-operated with its request for evidence! This means that Jadhav would have known that unless matters change dramatically, he will not be able to get out of Pakistani custody on account of the second case. As he faces an enormously long time in a Pakistani prison, he may not have got the confidence to move away from what the Pakistani intelligence would have asked him to say.

That all this is very disturbing is obvious, but the question is what would India do at this stage. However, before the government decides that, it has to clarify another matter. The statement notes:

“We will decide a further course of action after receiving a detailed report from our Cd’A and determining the extent of conformity to the ICJ directives”.

Govt Acting Correctly by Not Rushing into Deciding on a Course of Action

The government is acting correctly in not rushing into deciding on a course of action without getting a full report and considering it carefully.

However, surely in the negotiations that India held with Pakistan on the modalities of the consular access, the MEA would have ensured that Pakistan committed to giving consular access in “conformity with ICJ directives.”

The entire purpose of consular access was to enable Jadhav to have the freedom to speak candidly about the circumstances of his abduction and all that has happened to him subsequently.

The MEA must clarify satisfactorily the reasons which led it to agree to Jadhav’s interaction with Indian officials being recorded. It has been reported that it did so to assess his health and welfare. While this is an important consideration, it was more important to have a process that would have given him the confidence to speak freely and frankly with the Indian officials.

If the direction of an Indian court is flouted, a litigant has the opportunity to approach it for remedial action. There is, however, no provision in the ICJ statutes that would enable India to agitate the international body to look into the non-compliance of its decisions by Pakistan. It is also unlikely that India will pursue this formally in other UN forums such as the Security Council.

A complaint to the international community, especially the major powers on Pakistan’s conduct, also, will not really help as no country would like to get involved in this matter. In this light, India's way to pursue the matter would bear special watching.

Would Pakistan Fairly ‘Review & Reconsider’ Its Judicial Process?

The International Court of Justice had also held:

Pakistan must “provide by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, so as to ensure that full weight is given to the violation of his rights set forth in Article 36 of the Vienna Convention, taking account of paras 139, 145 and 146 of this judgment.”

The court had gone to the extent of stating that Pakistan should enact legislation, if required, to follow these directives.

However, if Pakistan has been putting relentless pressure on Jadhav, can it ever be hoped that it would fairly ‘review and reconsider’ the sham judicial process that it had subjected him to?

Now, India must demand that the counsel of its choosing should be allowed to review all the material of the case, and that secret courts or in-camera proceedings should be ruled out.

The fact is that the Jadhav issue will continue to agonise his family and him, and the nation at large for a long time, for Pakistan abandoned the time-tested ways of handling such matters at the very beginning.

It is good that the government has reiterated its resolve to work for Jadhav's safe return. That object should never be soft-pedalled, leave alone abandoned, however long it takes.

(The writer is a former Secretary [West], Ministry of External Affairs. He can be reached@VivekKatju. This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for them.)