Islamabad HC Gives Another Opportunity For Govt. Of India To Appoint Defence Counsel For Kulbhushan Jadhav [Read Order]

The Islamabad High Court has given another opportunity for the Government of India to appoint a defence counsel for Kulbhushan Jadhav.

The International Court of Justice had held that Pakistan violated Vienna Convention on Consular Relations 1963 by not informing Kulbhushan Jadhav without delay of his rights under Article 36(1)(b) to have consular access. Following this Pakistan passed an ordinance named International Court of Justice (Review and Reconsideration) Ordinance, 2020 which allows Jadhav to file a petition for the review of his death sentence by the country's military court before the Islamabad High Court through an application within 60 days of its promulgation.

In the proceedings related to this, the Attorney General informed the High Court that Jadhav has reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020

"We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court.", the three judge bench headed by the Chief Justice Athar Minallah said.

The Court also opined that the judgment of the International Court does not contemplate proceedings for review and reconsideration if Jadhav and / or the Government of India are not inclined or willing to avail the remedy specifically provided through the enactment of the Ordinance of 2020. "The obligation of the Government of Pakistan, prima-facie, appears to be confined to "providing" effective review and reconsideration. What if Commander Jadhav, exercising free will, or the Government of India decide not to pursue the statutory remedy provided for review and reconsideration? What then would be the status of compliance with the judgment of the International Court?", the bench said.

The court added that it is important to give an assurance to Commander Jadhav that his rights, particularly the right to a fair trial, is an integral factor of an effective review and reconsideration for a meaningful compliance with the judgment of the International Court. The court then issued these directives:

1. The learned Attorney General shall ensure that copy of this order is provided to Commander Jadhav.
2. The Government of Pakistan shall once again convey the orders passed in this petition to the Government of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the International Court.
3. The Registrar of this Court shall send to the learned amici curiae, appointed vide our last order, copies of the petition and documents placed on the record. They are expected to assist us on the status of compliance with the of the International Court in the event that Commander Jadhav or the Government of India decide against availing the remedy provided under the Ordinance of 2020.

The case is next posted on 6th October 2020. 

"We are in touch with Pakistan through diplomatic channels; Govt of India is taking all possible steps to ensure the safety of Kulbhushan Yadav", the spokesperson of MEA said in response to this news.

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