On Monday, 2 September, India accepted Islamabad’s offer of consular access to Kulbhushan Jadhav, who is on a death row in Pakistani prison on espionage charge. India had been seeking consular access to Jadhav for the last three years.
Senior Supreme Court lawyer Indira Jaising (IJ) recently discussed with former Solicitor General of India and the lead counsel on the Kulbhushan Jadhav case, Harish Salve (HS) the consular access as per the Vienna Convention, International Court of Justice judgment and more. Here are the edited excerpts:
IJ: Pakistan has now given consular access to Kulbhushan Jadav who is in their prison for long. Are you satisfied with what has happened?
HS: It is work in progress. They offered certain restrictive terms. The important point is that International Court of Justice (ICJ) has held that there has been an infraction of Article 36 in the Vienna Convention for not giving consular access and further delay in even informing India. There, the principle of relief is called restitution. Restitution is integral, which means complete restitution. If you give consular access in time before you record confessions, then the persons have the confidence of his own country, people backing him up, arranging legal representation.
Secondly, if you give consular access immediately upon risk, the host state may have concerns. They may not have finished their investigation.
If there are allegations of spying, if you give him access at that time which is private, he may tip off his sending state about certain evidence which they can remove, which otherwise they may have.
Today, three years down the road after the man is on the death row, what are the concerns thereon! I mean, they obviously have no investigation left. They have convicted him. Therefore, we are contending that allow us unhindered access. Also, for a reason, one of the main things, which may be played up over and over again is that he is a confessed criminal. What we are saying is he has to challenge that confession. Now, if that confession has been forced upon him and the Pakistani officials are present when he is having a conversation, it is naïve to believe that he will have the courage in their presence to say he was forced and then go back in their custody. He is not on bail. He is still in custody.
Moreover, when his family met him, he was very worried. The way he spoke to his mother. His mother asked him, and she wanted to talk to him in Marathi. They (Pakistani officials) said, “No. They cannot allow the conversation in Marathi.” They could naturally lapse into Marathi when one speaks to the mother or father. They said, “No, speak in English.”
IJ: You know, Marathi and Hindi are very different from each other...
HS: See, the very fact that you are being told to speak in English means you are put on notice to be careful on what you are saying.
IJ: Absolutely. So, coming back to the issue of restitution, is what my interest is in. Do I understand you to say that we now take the position that the conviction is null and void because the trial took place while Jadhav was in custody?
HS: Yes. See, there are two important problems here. The reason why the Supreme Court has said, “Pakistan must take all steps for effective review and reconsideration, including legislative measures, if necessary.” That’s a very important statement. You will not find this in any of the American cases. The reason why they had said that is, in the American Case, they said: “Give effective review and reconciliation.”
The US Department, in fact, went to the state court. You know, then there is hard federal divide and said, “Review.” The Federal Court said, "Under which law? We don’t have a law for review." They threw it out.
The President of the United States then issued a direction to the Federal Court to consider. The State, the Court, challenged it in the Supreme Court. The US Supreme Court said, “The Executive cannot interfere in judicial functions.”
IJ: As we have in India!
HS: As we have in India! So, you need legislative change. That is why it says, “If necessary by making a legislative change.”
The second significant thing is that Pakistan argued that under their existing law, they have sufficient safeguards.
The judgment, if you notice, goes systematically through the military law that this is not good enough. It rejects claimants as effective redundant reconciliation. It then examines the judicial review, arguments. It reads the Pakistan Supreme Court judgment, which narrows judiciary. And they had an amendment to the Constitution which puts these trials beyond challenges.
The Supreme Court then read a very limited judicial review and relied on a Lahore High Court judgment. We pointed out Peshawar High Court Judgment. We pointed out that the Supreme Court had granted a stay, so if they reverse that judgment. After noticing all, they said this. Obviously, they were not satisfied with any of them.
IJ: If necessary legislative measures come out of that argument…
HS: Thirdly, if you have to rewind and restart, you start from consular access to prepare his defence… consular access including arranging legal representation for his defence. His defence has been without assistance of consular access.
So now, if it is with consular access, then the defence has to be considered. They don’t have a machinery image to consider this image because his trial was by a Military Court. And believe me, if they have put him back to the Military Court, they have not decided a larger issue. If they put him back to the Military Court, one option could be, we go back and say that the Military Court is not due process compliant.
IJ: Exactly! It may not be there in their own Constitution but certainly on the International law. Is that what…?
HS: Minimum due process is customary in International Law.
IJ: On this issue, I have one final question. People say that International Law is soft law, how will this observation or judgment of the International Court be implemented?
HS: See, Pakistan is under so much pressure today. ICJ is one organ of the United Nations. Any breach of their judgments is actionable by way of sanctions.
IJ: Yes.
HS: Except, United States which gets some more soft treatment at the hands of the United Nations, I don’t think Pakistan will qualify for these soft treatments. They may go for sanctions.
IJ: That’s right. Whatever options they have, they may go for Security Council?
HS: There is a term called a 'rogue' nation.
IJ: Then, of course, nothing can be done.
HS: The International community will see to it.
IJ: Then, they cease to be a member of the international community.
HS: That’s right.
(This article was originally published on The Leaflet and has been republished with permission)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)