Kulbhushan Jadhav.

NEW DELHI: Armed with the ICJ verdict, Indian officials will push for consular access to Kulbhushan Jadhav, lodged in a Pakistani military jail for the past three years, and nudge Islamabad to shift his trial to a civilian court.

If Pakistan can be persuaded to move the trial to a civilian court, India will have the opportunity to provide proper legal representation to Jadhav to fight the case. Unlike India, Pakistan allows foreign lawyers to argue in its courts.

Sources said the government is set to make use of this to field an eminent lawyer, someone like Harish Salve . But if Pakistan keeps it in the military court system, India’s options become more limited.

Pakistan is now duty bound to give consular access, having been found in breach of its obligations under the Vienna Convention.

But there is a catch — if Pakistani officials stay in the room when consular access is granted, that is, when Indian officials meet Jadhav, the purpose would be defeated. In recent cases, sources here said, it has been noticed that Pakistani officials don’t leave the room as is mandated by law.

It is imperative that Indian officials be allowed to speak to Jadhav confidentially. That would allow them to ascertain several things — how he was picked up, what was the nature of the custodial interrogation, whether his confession videos were made under duress etc. That could also determine India’s approach going forward. Going by past practice, it is highly unlikely that Pakistan will allow unfettered access to Jadhav.

The most important thing that came out of the judgment is that Jadhav will live. He cannot be executed until his case is “reviewed and reconsidered”. The ICJ’s verdict clearly asked Pakistan for “effective” review and reconsideration of Jadhav’s conviction and sentence. But Pakistan will use the phrase “of its own choosing” broadly. It could send the trial back to the military court, defying the ICJ — the verdict indicated clearly that the mode of the trial did not pass the legal smell test.

However, the government here believes the “review and reconsideration” ICJ has asked for cannot be possible in a military court. “ICJ has clearly ruled that Pakistan must review the case. This implies that the earlier military court proceeding did not give Jadhav due process. So a retrial must take place which must be fairer than earlier, with full consular access and a defence attorney for Jadhav,” said Gautam Bambawale, who, as India’s envoy to Pakistan when Jadhav was arrested, bombarded the Pakistani government with official requests for consular access, thereby creating the conditions for India’s case at the ICJ.

Pakistan could just keep Jadhav in jail for a very long time, even if consular access is provided. It could theoretically hang him in defiance of the ICJ — but Pakistan did not do it in the past three years, it is not likely to do it now.

The temptation to use Jadhav as a diplomatic leverage with India will be very high. Pakistan could use Jadhav to get India to open talks, or grant other concessions. In recent weeks, Pakistan has indicated it wants to reopen talks with India, even if their baseline positions on outstanding issues remain constant. They reckon that with Jadhav in their custody, and India desperate to get him back it could come for a price.



In Video: “Kulbhushan Jadhav’s detention illegal”, says External Affairs Minister S Jaishankar