Senior Advocate and former Solicitor General, Harish Salve has made some crucial remarks and revelations about the Kulbhushan Jadhav case, observing that India might have to approach the International Court of Justice (ICJ) for “consequential directions”.
Kulbhushan Jadhav is an Indian Navy officer who retired prematurely. He had no link with the government, since his retirement. However, Pakistan accuses that he is a spy commissioned to the Research & Analysis Wing (RAW) and has further charged him with subversive activities in Balochistan and Karachi.
Harish Salve was India’s lead counsel in the Kulbhushan Jadhav case at the ICJ, which had granted India consular access to Jadhav in Pakistan, apart from staying his death sentence until Pakistan reviewed and reconsidered the conviction/sentence in light of Pakistan’s breach of Art 36(1) i.e. denial of consular access and notification, last year.
During an online interaction with by Akhil Bharatiya Adhivakta Parishad, an all-India lawyers’ association associated with the RSS, Salve revealed that India had made efforts through the “back-channel” to “persuade” Islamabad to release the former Indian Navy officer, Kulbhushan Jadhav.
Indian Express also claims to have learnt that National Security Advisor Ajit Doval had “gently nudged” his Pakistani counterpart Naseer Khan to release Jadhav during one of his interactions.
Salve said, “We were hoping that through the back-channel, we may be able to persuade Pakistan to let him go. If they want to say on humanitarian grounds or whatever, we want him back. We said, let him go. Because it’s become a big ego problem in Pakistan. So, we were hoping they would let him go, they haven’t.”
Pakistan had arrested Jadhav in March 2016 and had sentenced him to death in April 2017. India, on the other hand, moved the ICJ in May 2017 effectively securing a stay on the execution of the death sentence imposed during a trial by Pakistan in utter defiance of principles of natural justice and fair trial.
Harish Salve said that the July 2019 verdict of the ICJ rejected Pakistan’s contention that its laws provide for review and reconsideration, and made it clear that there must be “effective review and reconsideration.”
The verdict had also required Pakistan to provide India with consular access to Jadhav. But things haven’t been moving ahead in Pakistan. Islamabad allowed an Indian diplomat to meet Jadhav under watch.
This is why Salve feels that India might have to approach the ICJ again, and said, “I think we have reached a point where we may have to decide whether to go to ICJ for further consequential directions. Because Pakistan has not moved ahead.”
Harish Salve is hopeful of bringing Jadhav back to India, primarily because Pakistan doesn’t have damning evidence against Jadhav due to which Islamabad has been in a tight spot ever since ICJ directed it to review its military court verdict sentencing the former Indian Navy officer to death.
The former Solicitor General said, “We have come this far, they cannot now put him (Jadhav) to death; our consular officers have to be given access.”
All that Pakistan has in the name of evidence against Kulbhushan Jadhav is a confession, which itself is in utter violation of all canons of fair trial and evidence law. The confession that was extracted during interrogation by Pakistani security agencies is itself vitiated by duress.
Apart from the illegally obtained confession that is not at all admissible in Evidence law, Pakistan doesn’t really have any proof against Jadhav.
This is why Salve also says that the alleged confession should be disregarded. He also said, “Pakistan, till date, has refused to share the FIR, the chargesheet or the military court judgment,” highlighting the sheer opacity of the Kangaroo courts within Pakistan which do not seem to have followed even the most basic canons of fair trial when it comes to Kulbhushan Jadhav.
Salve added, “We (India) have been writing to Pakistan asking them to show evidence against Jadhav (in order) to better assist him. They refuse to part with it. We will not give it to you (they say).” Clearly, Islamabad doesn’t have any evidence to offer that is why it keeps beating around the bush when New Delhi asks it to share details about the Kulbhushan Jadhav case.
And this is exactly where India has a strong case against Pakistan- Islamabad doesn’t share a copy of the chargesheet, FIR or the military court judgement even three years after sentencing him but how will it hold a fair review of the case in accordance with the ICJ verdict, if it doesn’t share even the most basic of details?
Secondly, Pakistan understands that if things move ahead in accordance with ICJ directions, then it will have to ultimately release Jadhav as the death sentence cannot be confirmed in lack of any evidence, except an inadmissible confession.
Salve said, “Their domestic courts may find that sufficient. They know if it comes to a fair consideration and a fair trial, they will have no choice but to release him. Someday, we shall have him back in India.”
Clearly, India has a strong case against Islamabad, while the latter doesn’t have any evidence against Jadhav that can confirm his conviction if a fair review is held in accordance with ICJ directions. This is why Islamabad has brought things to a standstill in the Kulbhushan Jadhav case.
Salve’s message to the Modi government is clear- India must approach the ICJ and look for consequential directions compelling Pakistan to move ahead in its judicial proceedings against Jadhav if India wants to bring back the former Indian Navy officer from the Islamic Republic.
