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.

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.”

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.

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.

ADVERTISEMENTREMOVE AD

Members Only

‘Jadhav’s Conviction by Pak Court Grossly Unfair’: Harish Salve

India accepted Islamabad’s offer of consular access to Kulbhushan Jadhav on Monday, 2 September.

The Leaflet

Published: 03 Sep 2019, 4:30 PM IST

Law

Small

Medium

Large

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:

BECOME A MEMBER

‘Jadhav’s Conviction by Pak Court Grossly Unfair’: Harish Salve

India accepted Islamabad’s offer of consular access to Kulbhushan Jadhav on Monday, 2 September.

Read Latest News and Breaking News at The Quint, browse for more from news and law

Topics: Kulbhushan Jadhav Harish Salve Indira Jaising