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21 July, 2019 10:29:07 AM
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A big win for India

The verdict is a major diplomatic win for India that has been fighting the case in the international court for several years now
KUMKUM CHADHA
A big win for India

It clearly is a step forward and rightly hailed a  “major victory” for India the low down being that the International Court of Justice favouring India in the controversial case of Kulbhushan Jadhav which has taken several twists and turns in the past few years. Indian national Kulbhushan Jadhav was  sentenced to death by a Pakistani military court on charges of "espionage and terrorism" after a closed trial in April 2017.
A  former Indian Navy officer, Jadhav was arrested by Pakistani officials on March 3, 2016. Pakistan claim that its security forces arrested Jadhav from restive Balochistan province on March 3, 2016 after he reportedly entered from Iran. It also claimed  that Jadhav was an Indian spy. India, however, maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.
In India, Jadhav was identified as a police officer’s son. His father, Sudhir Jadhav retired as Assistant Commissioner of Police in Mumbai and his uncle Subhash Jadhav, was in charge of the Bandra police station in 2002 when the hit-and-run case was registered there against Bollywood actor Salman Khan. Jadhav had reportedly sought premature retirement from the Navy in order to start his own business.

Post arrest, Pakistan released a video of Jadhav’s “confession” wherein he stated  that he was  a spy for RAW. He also said that  he had been involved in various activities in Karachi and Balochistan and said that he had done this at the behest of the Indian intelligence agency RAW and that he was still with the Indian Navy. Jadhav reportedly told Pakistan agencies that  he was recruited by RAW in 2013, but established “a base” in Iran’s Chabahar 10 years before that, making clandestine journeys to Karachi and Balochistan. According to officials in Pakistan, Jadhav had converted to Islam and worked under the cover of a scrap dealer. The Ministry of External Affairs, however, said that  the video was  doctored.

However, details about Jadhav’s involvement with RAW are hazy. Jadhav had obtained a passport from Pune in November 2003 with the pseudonym, Hussein Mubarak Patel.

Multiple requests from India in the past for consular access have gone unheeded on grounds that the provision of such an access under the Vienna Convention is only for legitimate visitors and not for spies.  

However, Pakistan facilitated a meeting of Jadhav with his mother and wife in Islamabad on December 25, 2017.

But what has come as a major victory for India is a ruling by the  International Court of Justice earlier this week asking Pakistan to  review Jadhav’s  death sentence.  The Pakistan military court had  sentenced Jadhav to death.  A bench that ordered an "effective review and reconsideration of the conviction and sentence” also ruled that Pakistan had violated India's rights to consular visits after Jadhav's arrest.

Pakistan "deprived the Republic of India of the right to communicate with and have access to Mr Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation", the judges said.

Pakistan was under obligation to inform India about the arrest and detention of Jadhav under the Vienna Convention, the court said calling it a "breach" of Pakistan's obligations under the convention.

India had moved the ICJ in May 8, 2017 for the "egregious violation" of the provisions of the Vienna Convention by Pakistan by repeatedly denying New Delhi consular access to Jadhav.

India was represented by eminent lawyer Harish Salve. In his plea he questioned the functioning of Pakistan's notorious military courts and urged the top UN court to annul Jadhav's death sentence, which is based on an "extracted confession".

A bench of the ICJ, which was set up after World War II to resolve international disputes,  had restrained Pakistan from executing Jadhav till adjudication of the case.

This has come as a major relief and a win win situation for India that celebrated the verdict. It is also a matter of pride that India got major victories in the ICJ ruling on three counts.

For starters, ICJ suspended the death penalty awarded to Kulbhushan Jadhav by the Pakistani military court. Secondly, the ICJ ruled that Pakistan will have to review the entire process of trial and conviction of Kulbhushan Jadhav even as it directed Pakistan to take all measures  to ensure that  Jadhav is not executed pending the final decision.   Third, the ICJ noted that Pakistan breached the obligation incumbent upon it under Article 36 of the Vienna Convention on consular relations thereby meaning that Pakistan is legally bound to provide India consular access to Kulbhushan Jadhav.

There were however a few hiccups and even while there is a sense of victory, India’s argument to annul the military court verdict was not accepted. The Indian side also sought a direction to Pakistan for providing a safe passage for Kulbhushan Jadhav to return home.

Despite that, the verdict is a major diplomatic win for India that has been fighting the case in the international court for several years now. But politics has played out within.

While the Congress was by and large supportive of India’s win and even went as far as congratulating the Indian government, there were stray voices that were picking holes: the most vocal being Congress MP Shashi Tharoor who flagged Pakistan’s claim of having got the better of India.

Voicing what Pakistan Prime Minister Imran Khan said about Jadhav’s conviction not being annulled or his being repatriated, Tharoor sought to know how the Indian government would tackle a situation if Pakistan reaffirms its original judgement post review of the death sentence. The Government, Tharoor, said must clarify on how they would deal with an adverse situation were it to crop up.

What Tharoor says has immense possibilities but his public statement and attempt to put the Indian government in the dock has not gone down well. In fact it has somewhat diluted the Congress praise of the judgement with many questioning the party’s doublespeak. It would do the leadership well to rein in its people lest it provides fodder to Pakistan to criticise India because however logical Tharoor may try to sound the ground rule for all Indians must be to stand united when it comes to taking on Pakistan rather than scoring petty political points.

The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: (kumkum91@gmail.com)

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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