Facts of the Case:
India and Pakistan relations were never seeming to be in peace since Independence, there were many instances which causes tension in both states. Pakistan’s military courts have put 161 civilians to death over the last two years through an opaque process. A foreign detainee has right to life, right to fair trial and an impartial judiciary these all were not noticeable when Indian National, Kulbhushan Sudhir Jadhav was sentenced to death in Pakistan by a court-martial on allegations of “espionage, sabotage and terrorism”. On 18th May 2017, the UN Court had directed Pakistan not to execute Yadav pending the final decision in these proceedings. Pakistan claims that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran. However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.
India’s statement by Harish Salve
India says that since the case involves the interpretation and application of a multilateral international treaty – Vienna Convention on Consular Relations- International Court of Justice can exercise jurisdiction, regardless of Pakistan’s consent. Pakistan uses military courts to try civilians. This is against the basic canon of due process that military courts should be used only to try military personnel. Jadhav’s trial by military court hopelessly fails to satisfy even minimum standards of due process and should be declared “unlawful”
Pakistan’s conduct doesn’t inspire confidence that Jadhav can get justice there. Pakistan has in custody an Indian national who has been publicly portrayed to be a terrorist and Indian agent creating unrest in Balochistan. Pakistan used Jadhav to build a narrative against India, a pawn to further their propaganda, India submits that Pakistan has egregiously violated Article 36 of the Vienna Convention and demands that Jadhav be released forthwith
Pakistan Stand put up by Khawar Qureshi
“Pakistan has a robust judicial system, it is wrong on India’s part to disparage Pakistani military courts. Military courts follow the same rules of procedure and evidence as civilian courts. Jadhav’s confession was recorded as per Section 164 of the Code of Criminal Procedure by a Magistrate, who was called as a witness in the trial. Right to a fair trial is an absolute right under Pakistani Constitution”
“Apart from the convicted case, Jadhav is an accused in an FIR for terrorism, which is in the civilian domain. Jadhav himself has not sought for any review. He was afforded right to fair trial, and was given legal assistance”
- Article 36 is a powerful tool which ensures the facility of consular access to foreign nationals who have been put on trial in a foreign court.
- The main contention of the Jadav case is that whether Pakistan violated its obligations under Article 36 of Vienna Convention on Consular Relations 1963 by refusing India consular access to Jadhav when he was under detention.
- The provision of Article 36 of the Vienna Convention says that a country must be informed of the arrest of its citizens by another country. But in this case Pakistan did not inform India of Jadav’s arrest, no consular access was given to Jadav from Pakistan.
- It was a sheer violation of Article 36 of the Vienna Convention. Pakistan is relying on the bilateral agreement with India to evade its obligations under a multilateral treaty (Vienna Convention). Pakistan is overriding Domestic Law over International Law.
On 20.02.2019 concluding statement was given in International Court of Justice (ICJ) by Deepak Mittal, Joint Secretary of Ministry of External Affairs,
“I would like to say that Government of India takes full responsibility for what we have filed and protest strong language used by Pakistan. The government of India requests this Court to declare that Pakistan acted in breach of Article 36 of Vienna Convention. Pakistan failed to inform Jadhav of his rights. Pakistan declined consular access to Jadhav. Annul the decision of the military court and restrain Pakistan from giving effect to the sentence. Release Jadhav and ensure safe release forthwith. If not, then direct a trial under normal law with full consular access”.