Kulbhushan Jadhav Case Verdict: Justice and Truth Prevailed

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME 2 ISSUE 2 (June 2021)

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EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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KULBHUSHAN JADHAV CASE VERDICT: JUSTICE AND TRUTH PREVAILED

By : Manasvee Mishra & Surbhi Kumari

“Injustice anywhere is a threat to justice everywhere” - Martin Luther King

INTRODUCTION:- Kulbhushan Jadhav, a former Indian Navy commander, was born to Sudhir and Avanti Jadhav in Sangli, Maharashtra, on April 16, 1970. His father is a retired police officer from Mumbai. On the orders of India's intelligence agency, he is accused of carrying out espionage and sabotage against Pakistan. The charges have been refuted by India. Pakistan reports the former Indian Navy commander was apprehended in Balochistan on March 3, 2016. The Indian side, on the other hand, claims he was abducted in Iran, where he was running a business in the port city of Chabahar following his "premature retirement" from the Navy. Pakistan had the execution postponed after India appealed the decision to the International Court of Justice (ICJ) on May 18, 2017. OVERVIEW OF THE CASE:- On May 8, 2017, India filed a legal action against Pakistan in a dispute over alleged violations of the Vienna Convention on Consular Relations of April 24, 1963 "in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav," who was sentenced to death by a military court in Pakistan in April 2017. Pakistan failed to promptly notify India of the arrest and detention of one of its people, India claimed. It also claimed that Mr. Jadhav was not informed of his rights under Article 36 of the Vienna Convention on Consular Relations, and that India's consular officers were denied access to him while he was detained, detained, and imprisoned, and were unable to converse and correspond with him, or arrange for his legal representation. In its Application, India invoked Article 36, paragraph 1 of the Court's Statute, as well as Article I of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. On the same day, India filed a Request for Indication of Provisional Measures, asking the Court to order Pakistan to “take all necessary measures to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed” and to “ensure that no action is taken that would prejudice the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect to any decision the Court may render.” The Court ordered Pakistan to “use all means at its disposal” to prevent Mr. Jadhav from being

4 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 executed while the case is being resolved, and to notify the Court of any acts taken in response to the Order. It also decided to preserve jurisdiction over the subjects of the Order until the Court issued its final decision. Public hearings on the case's merits took place from February 18 to 21, 2019. Before finding that it has jurisdiction to hear India's claims based on alleged violations of the Vienna Convention, the Court described the backdrop of the problem in its 17 July 2019 judgement. Pakistan's three admission arguments were based on India's alleged abuse of process, rights abuses, and illegal conduct. The court determined that India's application was admissible. When it came to the merits of the case, the Court considered Pakistan's three arguments for and against the Vienna Convention's applicability one by one. After concluding that none of Pakistan's objections could be supported, the Court decided that the Vienna Convention applied in this case "regardless of the claims that Mr. Jadhav was involved in espionage activities." The Court then considered India's claim that Pakistan had failed to notify India of Mr. Jadhav's incarceration in a timely manner, as required by Article 36 of the Vienna Convention. The Court found that Pakistan had breached Article 36, paragraph 1 (b) of the Convention since it did not challenge India's contention that Mr. Jadhav was not informed of his rights. Because Pakistan had neglected to inform Mr. Jadhav of his rights, the Court determined that Pakistan had an obligation to notify India's consular post of his arrest and imprisonment, as required by Article 36, paragraph 1 (b) of the Vienna Convention. The Court then noted that Pakistan had notified India of Mr. Jadhav's arrest and detention on March 25, 2016, three weeks after his arrest; based on the facts of the case, the Court concluded that Pakistan had failed to notify the consular post "without delay," as required by Vienna Convention Article 36, paragraph 1 (b). The Court then turned to India's third claim, alleging that Pakistan had refused to allow Indian consular officers to communicate with Mr. Jadhav, noting that "Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the detained person's national state," and that "Article 36, paragraph 1 creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court The Court found that Pakistan's refusal to allow Mr. Jadhav consular access did not relieve Pakistan of its obligation to do so, and that India's purported failure to cooperate in Pakistan's inquiry process did not explain Pakistan's refusal to grant Mr. Jadhav consular access. The consular personnel' right to arrange for Mr. Jadhav's legal representation was not negated by Mr. Jadhav's choice of a qualified defence officer. As a result, the Court determined that Pakistan had violated its obligations under the Vienna Convention's Article 36, paragraph 1 (a) and (c) by denying India's consular officers access to Mr. Jadhav, despite their right to visit, converse, and correspond with him, as well as arrange for his legal representation. Regarding India's claim to restitutio in integrum, its request that the Court reverse the military court's decision and prevent Pakistan from carrying out the

5 www.ijlra.com Volume 2 Issue 2 | June 2021 ISSN: 2582-6433 sentence or conviction, and its additional request that the Court direct Pakistan to reverse the military court's decision, release Mr. Jadhav, and facilitate his safe return to India, The Court did find, however, that Pakistan had an obligation to provide effective review and reconsideration of Mr. Jadhav's conviction and sentence through means of its own choosing, in order to ensure that the impact of the violation of Mr. Jadhav's rights under Article 36 of the Vienna Convention was given full weight.

Chronology of events in the Kulbhushan Jadhav case: March 3, 2016: The date Pakistan claims Kulbhushan Jadhav was arrested, March 25, 2016: Pakistan informs India about the arrest, May 8, 2017: India moves ICJ against Pakistan, May 15, 2017: ICJ hears India's request for provisional measures. Pakistan asks the court to reject the request. May 18, 2017: ICJ issues binding order to Pakistan asking it to take all measures to prevent the execution of Jadhav pending final judgment of the court. December 25, 2017: Jadhav meets his mother and wife after Pakistan allow them to see him. February 18-21, 2019: Final hearings takes place in the ICJ. July 17, 2019: ICJ rules Pakistan must review Kulbhushan Jadhav’s death sentence July 19, 2019: Pakistan grants consular access, September 2, 2019: Indian officials meet Jadhav in Pakistan

Conclusion:- The Jadhav case is a significant legal victory for India, as it defines a country's responsibilities under the Vienna Convention on the Rights of the Child. However, given the results of past VCCR cases, the issue of whether or not it should be implemented looms large. The safety of Kulbhushan Jadhav has been on the minds of the Indian people ever since the issue was first brought to their notice by the media. The diplomatic discussion, coupled with a "review and reconsideration" of Jadhav's case, may result in an acceptable settlement of this prolonged problem, even if India may be reluctant to do so.

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BIBLIOGRAPHY

 “Clear India’s doubts in Kulbhushan Jadhav case”- The Hindu  Vienna Convention on the Law of Treaties 1969  https://www.business-standard.com/about/who-is-kulbhushan-jadhav  https://youtu.be/kTVJIGhd5Ek  “No communication from Pakistan”- Hindustan Times