Jadhav Hanging in Balance


The fate of the Indian naval officer Kulbhushan Jadhav, sentenced to death by a Pak kangaroo court, depends purely on diplomacy



DP Sharan has been a journalist for the past 30 years and has served many national dailies, magazines and channels.

With the interim order by the International Court of Justice (ICJ) that stayed the death sentence of the Indian prisoner in Pakistan jail Kulbhushan Jadhav till its final verdict, India has enough reasons to cheer, but the case still hangs fire. Pakistan is believed to be contemplating major steps to move to the UN Security Council hoping to garner support in the backdrop of possible moves by India.

It is also contemplating appointing one of its top jurists in an ad hoc position in the ICJ to edge out the power India has as it has got a permanent sitting judge in the global court.

Indeed, the order of the ICJ can neither be challenged in any court of law nor is it mandatory to be complied with. If Pakistan refuses to comply with the order of the ICJ, it cannot be compelled to do otherwise and it has enough options to exercise.

But the pertinent question is what options do India have to deal with the situation? In fact, India has been left with no option except a few steps that create a political backlash providing impetus to the political and judicial treachery being explored by Pakistan to execute Jadhav.

If intelligence inputs are to be believed, Pakistan is unlikely to comply with the ICJ order and is expected to go by its unilateral decision. Pakistan has reportedly resolved to take recourse to the UN Security Council with the avowed objective to obtain China’s support against the ICJ order. In its strategic move, Pakistan is said to be negotiating with China to support it to foil India’s attempt to get Jadhav released from the Pakistan jail by using its (China’s) veto power.

In case India reacts to the non-compliance of the ICJ order by Pakistan and broach the matter with UN Security Council, it would be a boon in disguise for Pakistan. Pakistan is, in fact, believed to be awaiting retaliation from India seeking the Security Council’s intervention to mount pressure on it to comply with ICJ order.

The Security Council has, indeed, the power to impose sanctions on a defiant Pakistan by passing a unanimous resolution in this regard. But, in case, even a single member remains in variance with the views of other members on the issue, the sanction will not survive.

Under Article 27 of the UN Charter, Security Council decisions on all substantive matters require the affirmative votes of nine members. A negative vote or “veto” by a permanent member prevents the adoption of a proposal, even if it has received the required votes.

The past bears testimony to the fact that whether it was the BRICS summit or the issue of punitive action against Pakistan-based terrorist Masood Azhar, Pakistan has always foiled India’s initiatives by proxy by roping in China in the international forums.

Similarly, China withheld action against Pakistan-based terrorist and Jaish-e-Mohammad Chief Masood Azhar by UN Security Council.

Pakistan is believed to be aiming to use China against India again if the latter goes to the Security Council. Under the provision that unanimous approval of all members of the Security Council is required to impose a sanction, Pakistan is likely to ask China to oppose the possible sanction in the garb of their mutual interest.

China cannot, however, afford to go against the human rights’ issues raised by India in the light of the provisions of Vienna Convention at the ICJ. If China stands by Pakistan in the Security Council, it may have to bear the wrath of the European nations that have been worst victim of human rights violation and thus, strongly advocate the cause for human rights.

Other options that India may explore to ensure Jadhav’s release from Pakistan jail includes filing of appeal petitions at the higher court or mercy petition for a pardon from the President against the Army Court decision. The military tribunals were established soon after the massacre of more than 150 people, most of them schoolchildren, at an army-run school in the northwestern city of Peshawar in December 2014. The military court had initially a fixed term of two years to try civilian ‘terrorism’ suspects. The term of the court was, however, further extended for a period of another two years with majority votes in the Parliament in January 2017.

Since 2015 Pakistan’s military says it convicted 274 people in cases related to “terrorism”. Of those, 161 people were sentenced to death, while 113 people were sentenced to prison terms. There had been no acquittals, the military said.

Lawyers and family members of the accused, in interviews and appeals lodged in civilian courts following the convictions, have alleged that their relatives were coerced into confessing, were not given access to lawyers of their choice, or to the evidence being used against them.

Lawyers representing the convicts in civilian courts confided that they had been denied access to court documents, making it difficult to file effective appeals. India has also been denied access to court documents including the copy of the FIR, Chargesheet and the Army Court’s verdict.

To top it all, the questions that remain unanswered are what legal options has India been left with to go ahead? Barring a temporary stay on the death sentence, the ICJ neither ruled for consular access to be granted to Jadhav nor has it the jurisdiction to impose its ruling upon Pakistan.

In fact, India has been left with no option except to negotiate with Pakistan on mutual conditions to release prisoners languishing in respective countries.

(DP Sharan is a seasoned journalist with over 30 years of experience, he analyses national and international issues that include economic, political and social subjects. He has headed sizable editorial teams of visual and print media during his association with BusinessWorld Magazine and Zee News & DNA as the Consulting Editor and Resident Editor respectively. Other organisation where he made valuable contributions are The Pioneer, The Hindustan Times, The Hindu, Economics Times, Financial Express, Sunday. Presently he is the Group Editor for Parliamentarian)


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