VIVEKANANDA INSTITUTE OF PROFESSIONAL

STUDIES

VIVEKANANDA SCHOOL OF LAW AND LEGAL

STUDIES

JADHAV ( INDIA VS. PAKISTAN) CASE

SUBMITTED BY:

RIYA
ENROLLMENT NO:

21817703819

SEMESTER AND SECTION:

6TH E

SUBMITTED TO:

DR. MOUMITA MANDAL

ACKNOWLEDGEMENT:
FIRST AND FOREMOST, I WOULD LIKE TO THANK THE ALMIGHTY FOR
THIS OPPORTUNITY. I ALSO TAKE THE OPPORTUNITY TO EXPRESS MY
PROFOUND GRATITUDE AND REGARD TOWARDS MY TEACHERS FOR
THEIR ENCOURAGEMENT AND SUPPORT AND IN PARTICULAR MY
MENTOR DR. MOUMITA MANDAL FOR HER EXEMPLARY GUIDANCE,
MONITORING AND CONSTANT ENCOURAGEMENT THROUGHOUT THE
COURSE OF THIS RESEARCH PROJECT. THE BLESSING, HELP AND
GUIDANCE GIVEN BY HER TIME TO TIME SHALL CARRY ME A LONG
WAY IN THE JOURNEY OF LIFE ON WHICH I AM ABOUT TO EMBARK.

I ALSO TAKE THIS OPPORTUNITY TO THANK MY PARENTS FOR THEIR

UNTIRING SUPPORT AND MY FRIENDS FOR HELPING ME DURING THE
RESEARCH WORK AND ALL OTHERS FROM WHOM I HAVE TAKEN HELP
TO COMPLETE MY RESEARCH PROJECT.

RIYA
DECLARATION:
I HEREBY DECLARE THAT THIS RESEARCH PAPER TITLED AS “ JADHAV
(INDIA VS. PAKISTAN) CASE ” WHICH IS SUBMITTED FOR THE 6TH
SEMESTER HAS NOT BEEN SUBMITTED IN ANY UNIVERSITY FOR ANY
DEGREE OR DIPLOMA AND IS MY ORIGINAL CONTRIBUTION. I HEREBY
VERIFY THE ORIGINALITY OF CONTENT OF THE RESEARCH PROJECT.

PLACE; DELHI

RIYA
CERTIFICATE BY GUIDE:
THIS IS TO CERTIFY THAT THE RESEARCH PROJECT ENTITILED, “
JADHAV (INDIA VS. PAKISTAN) CASE ” HAS BEEN PREPARED BY RIYA, A
STUDENT OF B.A.LL.B, 6TH SEMESTER, VIVEKANANDA LAW SCHOOL,
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES UNDER MY
SUPERVISION AND GUIDANCE AND I RECOMMEND IT FOR SUBMISSION
FOR THE EVALUATION.
CONTENT:

1. WHO IS KULBHUSHAN JADHAV

2. MATERIAL FACTS OF THE CASE

3. ISSUES OF THE CASE

4. ARGUMENTS ON BEHALF OF TEH REPUBLIC OF INDIA

4.1 FAILURE OF PAKISTAN IN PROVIDING CONSULAR ACCESS TO

KULBHUSHAN JADHAV( VIOLATION OF ARTICLE 36 OF VCCR)

4.2 ABUSE OF RIGHTS

4.3 REMEDIES

5. ARGUMENTS ON BEHALF OF THE ISLAMIC REPUBLIC OF PAKISTAN

5.1 ABUSE OF PROCESS

5.2 ABUSE OF RIGHTS

5.3 INDIA GUILTY OF ITS UNLAWFUL CONDUCT

6. CONCRETE JUDGMENT

7. CONCLUSION

8. BIBLIOGRAPHY
WHO IS KULBHUSHAN JADHAV:
Kulbhushan Jadhav is an Indian national, who is on the death row in Pakistan. He is
accused of carrying out espionage and sabotage activities against Pakistan at the
behest of India's intelligence agency. India has denied the allegations.

Pakistan claims the former Indian Navy officer was arrested on March 3, 2016 in
Balochistan. The Indian side, however, maintains that he was kidnapped from Iran,
where he was running a business in the port city of Chabahar after a “premature
retirement” from the Navy.

Jadhav, a former Indian Navy officer, was born in Sangli, Maharashtra, on April 16,
1970 to Sudhir and Avanti Jadhav. His father is a retired Mumbai Police officer.

Jadhav is married and has two children. His family resides in Mumbai.

Material facts :
On 03.03.2016, Kulbushan Jadhav was arrested by Pakistan and on 24.03.2016, the
military establishments and law enforcement agencies of Pakistan accused Jadhav of
being a spy, having crossed over from Iran and was caught in southern Pakistan, i.e.
Balochistan. In the meanwhile, Pakistan also shared a video, wherein Jadhav is seen
confessing to the allegations leveled against him.

On 23.01.2017, The external affairs minister of Pakistan sent a “Letter of Assistance

for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the
High Commission of India in Islamabad but no response was received. On
29.03.2016, India claimed all the allegations leveled against Jadhav to be baseless as
he is a retired naval officer and was illegally kidnapped by the Pakistani authorities
from Iran. In addition to this, the Indian government sought Consular access for
Kulbushan Jadhav from Islamabad which was denied. As many as 16 requests from
New Delhi were turned down by Pakistan over the course of 1 year. On 10.04.2017,
the Pakistani Military Court sentenced Kulbushan Jadhav to death on account of
“Espionage and Terrorism.”1

On 14.04.2017, the Indian government demanded an authentic copy of the charge –

sheet and verdict of the military court of Pakistan which sentenced Jadhav to death
and further requested Consular access for Jadhav. On 08.05.2017, aggrieved by the
stance taken by Pakistan and lack of cooperation shown by them, in granting Consular
access to Kulbushan Jadhav, India approached the International Court of Justice at the
Hague Netherlands against the decision of Pakistan’s Military Court that awarded a
death Sentence to Mr. Jadhav. On the very next day, the ICJ stayed Jadhav’s
execution.

1
Jadhav Case (India v. Pak), Judgment, Merits (Int'l Ct. Just. July 17, 2019).
After much deliberations and negotiations between New Delhi and Islamabad, on
10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s wife on ‘humanitarian grounds
‘and further extended the offer for his mother as well, it also assured India of the
safety of the visitors and their free movement. In nutshell, Kulbhushan “Sudhir
Jadhav was a 50-year-old retired Indian Navy Officer who was sentenced to capital
punishment by the Military Court of Pakistan. The charges against Jadhav for which
he was being sentenced to death was ‘Espionage and Terrorism.’

Issues:
The issues that arise for consideration of this Court are:

1. Whether the sentence awarded by Pakistan’s Military Court is illegal?

2. Whether Pakistan has violated the standards laid down by the Vienna
Convention on Consular Relations (VCCR)2 and International Covenant on
Civil & Political Rights (ICCPR) by not granting Consular access to
Kulbushan Jadhav?
3. Whether or not the ICJ had jurisdiction to preside over the present matter
and entertain an application therein?
4. Whether the Vienna Convention on Consular Relations were implicitly
inapplicable in cases of terrorism or espionage?
5. Is“Pakistan’s demand correct that India should assist in the investigations
of the case concerning Jadhav which will serve as a precondition to
granting consular access to India pursuant to Article 36 acceptable or is the
obligation under Article 36” unconditional?
6. Whether the 2008 bilateral agreement entered into between India and
Pakistan supersede the already existing Vienna Convention on Consular
Relations?

Arguments on behalf of the Republic of

India:
The counsel, Mr. Harish Salve, Senior Advocate, appearing on behalf of the Republic
of India, instituted proceedings against Pakistan“under Article 36, paragraph 1 of the
Statute of the ICJ, and Article 1 of the Optional Protocol to the Vienna Convention on
Consular Relations Concerning the compulsory settlement of Disputes alleging
violations of the VCCR by Pakistan”.

1. The Counsels, appearing on behalf of the Republic of India, stated that the
military court of Pakistan had sentenced Kulbushan Jadhav to death and
accordingly our request for granting consular access( ability of citizens of a
2
The other cases were: LaGrand Case (Ger v. U.S.), Judgment, Merits, 2001 ICJ Rep. 466 (June 27)
[hereinafter LaGrand Case]; and Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.),
Judgment, Merits, 2004 ICJ Rep. 12 (Mar. 31) [hereinafter Avena Case].
 country to have access, physical or via communication,with the consular
officials of their own country while in a foreign country) to Jadhav is a
matter of right of every individual under Article 36(1) of the VCCR and
Pakistan has denied that more than 16 times and therefore is a clear
violation of article 36(1) of the VCCR from Pakistan.
2. The counsels further submit that Article 73(2) of the VCCR, provides that
“nothing in the present Convention shall preclude States from concluding
international agreements confirming or supplementing or extending or
amplifying the provisions thereof”, and therefore under no circumstances, a
bilateral agreement entered into between India and Pakistan will take
supremacy over the already established provisions of VCCR and therefore
the provisions of VCCR will take supremacy and will be applicable in the
present matter.
3. The obligations “under the VCCR may be enhanced or clarified by
bilateral treaties, but cannot be diluted or undermined, as affirmed by
authoritative interpretation of the VCCR and general principles of treaty
law, including Article 41(1) of the Vienna Convention on the Law of
Treaties. Also, the reservations stated in Article 36(2) of the ICJ statute, is
independent of and not a mere prerequisite to invoking the authority under
Article 36(1) of the ICJ Statute, and accordingly, VCCR is the rightful
authority to be referred to in matters of consular access.

Failure of Pakistan in providing consular access to

Kulbushan Jadhav (violation of Article 36 of the VCCR):
1. The counsels, on behalf of the Republic of India, suggests that it’s the
lawful right of any detained person in an alien state to have direct
correspondence with the nationals of his own country for the purposes of a
fair trial and accordingly the phenomenon governing the same is known as
consular access.
2. The counsels further submitted that the consular officer shall have the right
to converse, communicate and visit any detained individual of its country
in an alien country or foreign territory and shall have complete freedom
with respect to communications.
3. Therefore the right of legal representation cannot be denied at any point of
time no matter what, as consular access is one of the main prerequisites of
ensuring that a fair trial takes place in accordance with international law
and international humanitarian law.
4. In simple terms, Pakistan did not respect and oblige by the covenants of
VCCR, ICCPR, ICJ statute and has created a gross error in its application
submitted to the International Court of Justice: (a) by not providing
adequate information to India about the detention of Mr. Jadhav and that
 too without delay, (b) by not informing the detainee about his lawful right
and remedy; and (c) by denying India and its consular officers the
imprescriptible right of Consular access, guaranteed to them under Article
36 of the VCCR.3

Abuse of rights :
The counsels submit that prima facie denial of all the lawful rights by the Islamic
Republic of Pakistan is itself evidence of the fact there has been a gross abuse of
rights. Not only this denying one a right to a free and fair trial is a gross error and
completely against the tenets of ICCPR, thereby making a grant of consular access
one of the main prerequisites for a free and fair trial. Therefore the justification
provided by Pakistan that grant of consular access is only provided if the other
country accepts and provides proof that the detainee in question is their national is
completely baseless as a fact in question is only addressed if it’s in dispute and in the
present case Pakistan has always mentioned Kulbushan Jadhav as an Indian national
and as per the reasoning of Pakistan, but they are also guilty of not providing India
with consular access when the question of nationality was prima facie very clear and
without any ambiguity.

Remedies :
In the final limb of its submissions, the Counsels, appearing on behalf of India made it
very clear as to what they are looking out for from this settlement in ICJ. The
remedies that India wants from the Islamic Republic of Pakistan were submitted by
the counsels, which were as follows:

1. Suspension of the death penalty with immediate effect keeping in mind the
ratio laid down by the ICJ,
2. The declaration “that the sentence by the Pakistani military court was
“brazen defiance” of the Vienna Convention on Consular Relations
(VCCR) and the International Covenant on Civil and Political Rights
(ICCPR) since Pakistan had not given India consular access to Jadhav.
3. Pakistan should annul the decision of its Military Court and make
retrenchments for the release of Kulbushan Jadhav.
4. The Court should further declare that the sentence awarded by the military
court was in complete violation of the VCCR, ICCPR and the tenets of
International law and accordingly the Republic of India is entitled to
‘Restitution in integrum’, i.e. restoration of the position of the detainee in
question to pre-arbitrary arrest position which will mean the deportation of
Kulbushan Jadhav back to India.

3
Jadhav Case (India v. Pak), Application Instituting Proceedings, para. 60 (Int'l Ct. Just. May 8, 2017),
Arguments on behalf of the Islamic
Republic of Pakistan:
The Counsel, Mr. Khawar Qureshi, Legal Counsel & Advocate, appeared on behalf of
the Islamic Republic of Pakistan and stated that India has committed 3 main mistakes
in the present matter while responding to its allegations. Pakistan submitted that there
has been an abuse of the process, abuse of the rights, and unlawful conduct on the part
of India as they did not accept the mere fact that:

first objection, Pakistan stated that the fact that India brought the case of Jadhav to the
ICJ was an abuse of the Court’s process. It was so because although India’s
application sought the Court for a judgment or order for a specific purpose, but in
reality was pursuing some different purpose which takes the application outside the
scope of the provision on which it was purportedly based’.4

Secondly, Pakistan argued that the ICJ should dismiss India’s application on the
ground of abuse of rights. It stated that India failed to prove Jadhav’s Indian
nationality and was ineligible to submit an application. Pakistan also claimed that
India breached its international obligations under the United Nations Security Council
Resolution 1373 of 2001, and India had authorised Jadhav to carry out espionage and
terrorist activities.5

Thirdly, Pakistan argued that India’s application was on the basis of India’s alleged
unlawful conduct, relying on the doctrine of “clean hands” and the principles of “ex
turpi causa non orituractio” and “ex injuria jus non oritur”, and hence the case must be
dismissed.6
Therefore India cannot invoke the jurisdiction of Article 36 of the VCCR in the
present matter because of the existence of the 2008 bilateral agreement already
entered into by the parties.

Abuse of process:

The Counsels on behalf of the Islamic Republic of Pakistan stated that India has
violated certain procedures as a matter of its procedural right and that validly
4
Counter Memorial of the Islamic Republic of Pakistan, International Court of Justice, December 13,
2017, https://www.icj-cij.org/files/case-related/168/168-20171213-WRI-01-00-EN.pdf as accessed on
July 19, 2019
5
https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf as accessed on July 22, 2019
6
“Ex turpi causa non orituractio” means of an illegal cause there can be no lawsuit and “ex injuria jus
non oritur” means law (or right) does not arise from injustice
constitutes an abuse of power. Firstly, it violated the process by requesting the ICJ to
take resort to procedural measures thereby stopping the execution of Kulbushan
Jadhav. India undermined the mere fact that Pakistan allows every person, a
constitutional right of filing a clemency petition, 150 days after the award of death
sentence and so it was the same in the case of Mr. Jadhav. Therefore India
undermined what Pakistan calls ‘highly material facts’ and thus violated the process
by approaching ICJ when the appropriate remedy was there to stay the execution of
Jadhav.

1. Secondly, India violated the provisions of Article 2 and 3 of the Optional

Protocol to the VCCR by not providing Pakistan to take recourse to other
forms of dispute resolution mechanisms as is envisaged in the said Articles.
It is expected of the parties to notify or inform the other party that a dispute
arose and the same has to be solved within a period of 2 months, not by
approaching the ICJ but an appropriate tribunal or a forum for the
same. Both these measures clearly state that India has violated the process
and as a matter of fact, they cannot subject Pakistan to the Jurisdiction of
ICJ.

Abuse of rights:
The Counsels for Pakistan, in their next limb of submissions, submitted that India
should be held accountable for abuse of rights by not corroborating in further
investigations into the case of Kulbushan Jadhav as:

 Firstly, India blatantly refused to provide clarity on the nationality of

Jadhav by means of arranging his actual Indian passport bearing his name;
even it had an explicit duty to do so.
 Secondly, India’s cold stance on helping Pakistan carry out further
investigations wherein India was requested by Pakistan, to assist in
carrying out the criminal investigations into Mr. Jadhav’s activities.
 Thirdly, India had assisted Jadhav in carrying out various activities related
to espionage and terrorism and there is enough material on record to prove
the same. India provided Kulbushan Jadhav with a “false cover name
authentic passport” and therefore violated certain anti-terrorism laws and
thereby the counsels, on behalf of Pakistan, would request the ICJ to
invoke certain United National Security Councils Resolution against India
with respect to the same as what they did was completely an abuse of
rights.

India is guilty of its unlawful conduct:

 1. The Counsels, on behalf of the Islamic Republic of Pakistan, humbly
submits that the admissibility of India’s claim/application is concocted on
the mere fact that they are guilty of alleged unlawful conduct. In addition
to this, the Counsels, request the ICJ to dismiss and not accept India’s
stance, as they are supposed to come to the court with clean hands, and
accordingly the principles of “ex turpi causa [non oritur actio]” and “ex
injuria jus non oritur” apply in this case as well.
2. Failure of India to respond to Pakistan’s request of assistance to carry out
further investigation into the criminal matter of Kulbushan Jadhav, helping
Jadhav by providing him a fake forged passport to carry out activities such
as espionage and terrorism against Pakistan and disregarding the 2008
bilateral agreement between the parties is an indication of the fact that they
have not come to the Court with clean hands, and accordingly, their
application should be dismissed as it lacks merit.
Therefore, on behalf of the Islamic Republic of Pakistan, as counsels, we would like
to submit before the hon’ble ICJ that since India has not assisted Pakistan in carrying
out investigations into Jadhav’s matter and not establishing Jadhav’s national identity
is in itself evidence of the fact that they are denying him to be an Indian, as a result of
which the demand for seeking Consular access stands dismissed as establishing valid
nationality is a prerequisite for the same.

Concrete judgment:
The final verdict about the petition submitted by India on the case of Shri Kulbhushan
Jadhav was awarded by the International Court of Justice (ICJ) on July 17, 2019. The
verdict is a 42-page document. Both the Indian and the Pakistani media declared the
verdict as a national victory. Pakistani media asserted that ICJ have rejected India’s
claim for Jadhav’s acquittal and release.7

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. The
judgment delivered by the majority pointed out mainly with the question of violation
of article 36 of VCCR. As per the court’s observation, the main dispute between both
countries is about ‘consular assistance’ of arrest, detention, trial, and sentencing of
Kulbhushan Jadhav. Both the countries besides being the members of VCCR are also
members of “Optional Protocol to the Vienna Convention on Consular Relations
concerning the Compulsory Settlement of Disputes” without any reservations or
declarations. The court had observed that the jurisdiction of the case comes about
from Article 1 of the “Optional Protocol” and does not breach any of the international
treaties’ asides from VCCR. Therefore, it has legitimate jurisdiction under Article 1 of
the Optional Protocol as alleged by the State of India regarding the violation of
VCCR.

7
“ICJ rejects Indian plea for Jadhav’s acquittal, release”, Dawn, July 18,
2019, https://www.dawn.com/news/1494738/icj-rejects-indian-plea-for-jadhavs-acquittal-release as
accessed o July 23, 2019
The“three objections raised by the State of Pakistan regarding the abuse of power,
abuse of rights and unlawful conduct by the State of India were dismissed and India’s
application was admissible. Further, the court also held that Pakistan has acted in
breach of the agreement and failed to fulfill its obligations as per Article 36 of VCCR.
The State of Pakistan had failed to inform Kulbhushan Jadhav about his rights which
he had under Article 36(1)(b), by not informing India about the arrest and detention of
Jadhav and lastly by denying the access of Jadhav by the Consular Officers of India.
These were all part of the VCCR agreement which Pakistan had agreed without any
reservations or declarations. Hence, the court has found Pakistan to be in violation of
international laws.”

With respect to India’s demand of “restitution in integrum”, The Court recalls that “it
is not to be presumed… that partial or total annulment of conviction or sentence
provides the necessary and sole remedy” in cases of violations of Article 36 of the
Vienna Convention8. Thus, the Court finds that these submissions made by India
cannot be upheld.

Conclusion:
In the instant matter, the researcher clearly agrees and concurs with the reasoning and
judgment of that of the Honourable International Court of Justice as there are many
substantial points to be appreciated. Also, there are a few grounds given on which the
researcher does refuse to agree with the view taken by the Court. A counterbalanced
view of both the opinions and findings are to be presented here conveniently.

Merits :
1. The Court was correct in its stance in holding Pakistan liable for violating
the provisions of VCCR, ICCPR and the mere fact that VCCR will be
applicable over and above the domestic legislation, i.e. the 2008 bilateral
agreement entered into between the parties.
2. The Court was correct in it’s reasoning that Article I of the Options
Protocol provides for the jurisdiction of the ICJ to preside over matters
concerning the said protocol.
3. The Court deduced a proper analogy that only a fact that is in dispute is to
be addressed so the stance taken by Pakistan that India did not help them to
carry out criminal investigations against Kulbushan Jadhav is an indication
of the fact that India denied them of Jadhav being an Indian citizen and
accordingly the right to consular access is out of the equation, is
completely baseless as there is enough material on record to prove that
Pakistan was aware of Jadhav’s nationality and time and time again they
have used the term ‘Indian Spy.’

8
ibid., p. 60, para. 123
 4. The Court was correct in dismissing India’s stance with respect to
restitution in integrum as it is against the tenets of International law
because the Official Secrets Act of Pakistan enables the detainees to file for
a review petition and therefore passing an order for deportation of
Kulbushan Jadhav back to Indian territory will be against the principle of
fairness and will undermine the constitutional apparatus of Pakistan as a
law or a ruling is given effect to if there’s a lapse in the system.

Demerits:
1. The Hon’ble Court was correct in its approach about the applicability of
the VCCR but as a researcher, the Court did not read into the provisions of
the 2008 bilateral agreement as to why the parties can decide the cases on
their own merit if there is a threat to the sovereignty, social order and
political apparatus of the country. The researcher is neither disputing the
validity of the VCCR nor going against its application over and above the
bilateral agreement, the only concern stands to be that the Court should
have given a plain harmonious reading to the provisions of the bilateral
agreement to understand the gist with regards to the same.
2. As per the researcher, the Court did not lay much emphasis upon Article II
and III of the Optional Protocol concerning the compulsory settlement of
disputes 1963 in the same way they did for the Article I of the same
protocol. The main reasons for the same were not clearly established as the
issue of dispute resolution before submitting the said application before the
ICJ was kept out of the question.
These were the two demerits of the case as per the researcher’s point of view. The
researcher does agree with all the other findings of the Court and the way in which it
used the given precedents as binding and distinguished the non-binding ones.

BIBLIOGRAPHY:

WEBSITES:

1. https://blog.ipleaders.in
2. https://www.drishtiias.com
3. https://www.business-standard.com
4. https://www.cambridge.org

BOOKS:
1. THE CASES THAT INDIA FORGOT BY CHINTAN CHANDRACHUD

NEWSPAPER:

1. Hindustan Times (2019), “‘No talks’, says Pak on Jadhav, rejects demand of
unimpeded consular access,” 8 August 2019
2. ARY News (2019), Maj. Gen. Asif Ghafoor’s Interview by ARY News, 17 July
2019
3. The Hindu