Updated: Nov 29, 2020
ABSTRACT “COMPASSION OF THE BRAVERS, PASSION OF OUR SOLDIERS SHALL ALWAYS BE APPRECIATED WITH THE TAG OF MUSCULARS” It is the old connotation which was always been considered in our Indian judiciary that guilty should always be prisoned butinnocent should always be free from the walls of the bar. But the whole world is surviving on the two wheels i.e. Positive coinand negative coin. Where there are hundreds of things are in the right path, there are some minute differences that will lead to a negative path. In simplest it means where there will be happiness the sorrow will go hand in hand. Similarly the main focus of the judiciary is to provide justice but in the modern independent era our pages of the judiciary also contains suchcases who are wrongfully detained or deprived by their rights and such wrongful detention leads such lives towards losing the time of their memorable journey of their life. The time flews like wind but those who are in shackles of the prison finds it difficult to spend even one second with the a smile. The article is stroking its light towards one of the case which is full of sorrow as well as drawing attention towards one of the diamond of our nation named Kulbhushan Jadhav who sacrificed his life to protect the nation from the knives and salute to his wife who supported him with strong kind. It is the fact of theuniverse that in front of the door of god, there is a delay in gaining happiness but not having darkness. This idiom suits to our Indian victory that the verdict to release Kulbhushan Jadhav from the Pakistani government is overwhelming. As the main stroke of the evil is destruction but eternally one day it will always get rooted out and the fact of victory comes to betrue that where there is truth there is the sign of victory. KEYWORDS Judiciary, Deprived, Detention, universe, Independent,. PAKISTAN FULLY COMPLIED WITH ICJ JUDGMENT On May 2017, India approach the world court stating that Pakistan officials were rejecting India for its right of consular access to kulbhushan Sudhir Jadhav in encroachment of the Vienna convention. After this approach, the legal proceedings of the case began in The Hague and both countries with their legal team presented their argument lead by Harish Salve andKhawar Qureshi. On 17th July 2019, the ICJ rejected the appeal of India for the realization of Jadhav and administered Pakistan to permit consular access and effectively review the death sentence. The court that Pakistan had violatedinternational law by not providing consular access. Both the countries i.e
India and Pakistan down the victory and welcomed the judgment of the court of international justice. Kulbhushan Jadhav is the Indian Naval officer, who was sentenced to primal incarceration by a Pakistani military court on charges of espionage and terrorism in April, 2017. Weeks later India again approach to the world court alleging against Pakistan for denial of consular access to the retired naval officer and challenging the death sentence. Harish Salve who was the lead counsel for India in the Jadhav case raised arguments in front of ICJ had in July last year the verdict pronounced that Pakistan must tackle an effective and qualitative review and reconsideration of the conviction and sentence of the Kulbhushan Jadhav and also ordered to provide consular access to India without further hindrance. The Indian government is hoping that by persuading Pakistani authorities Kulbhushan Jadhav should be realised through the back channel. The only motive of our nation is to take back him whatsoever on the humanitarian ground or any other as the conflict between the Pakistan andIndia always raises the issue of ego problem and to maintain the respect of our nation our lead council Salve said on May 3. 2020 from London that our India is hoping that Pakistani authorities will let him go. Advocate of the Jadhav wrote four, five letters that Pakistani has not moved ahead and the time arose to go back to ICJ, for consequential direction. Replying back to the Salve remark Aisha Faraooqui the Pakistan foreign office spoke person noted the statement of India’s legal counsel and suggested that statement are opposing to the facts of the case and we denied the baseless and inaccurate assertion the Pakistan has not followed with the ICJ, judgment in the case. So India should go back to ICJ only as Pakistan has fully complied with judgment and remain committed to continue it by granting India the consular access and Pakistan has also taken effective processing measures to review and reconsideration of death sentence as per the guidelines provided by the ICJ in its judgment. Faraooqui stated that Pakistan being a responsible state abides with all its international obligationsand felt so regrettable on the statement by the Salve. The bench however rejected some remedies sought by India including annulment the military courts decision of convicting Jadhav and his realease and safe passage to India. The victorious movement for India is that ICJ upheld India’s assertion that Pakistan had breached the Vienna conviction on diplomaticrelation which eased the every country the right to consular access when their nationals are arrested abroad. So on Sunday Pakistan said that it was fully followed with the ICJ judgment in the Jadhav case and India’s counsel stated that the capital of India had hope that it might be able to persuade Islamabad through the back channel to realize the Indian death rowoffender.
WHAT IS KULBHUSHAN SUDHIR JADHAV CASE “Kulbhushan Sudhir Jadhav is a retired Indian Naval officer, who was born on 16 April 1970; He was arrested on 3 March 2016, by the Pakistani government in the province of Balochistan on the charges of terrorism and spying for India’s intelligence agency, the research and analysis wing the Indian government recognized Jadhav as a former naval officer but denied any current link with him and maintained that he took prematureretirement and was abducted from Iran where he went 8to establish his business interest. According to the report of PakistanJadhav joint the Indian National Defense Academy 1987. Pakistani media also reported that he began to gather information and intelligence within India after parliamentary attack of 2001, and after 14 years of service he was inducted intointelligence operation in 2003, and establish his small business in Iran where he made several undetected visits to Karachi and Balochistan. But India always maintained its arguments that Jadhav was abducted by Pakistani authority after 21 days of delayon 24th March Pakistan gave Indian information about his detention. On 10th April 2017 Jadhav was sentenced to deathwithout providing him legal consular access and deprived him of every right after all the proceedings initiated and arguments closed on 17th July 2019, the International house of justice delivered its judgment which was inclined towards our nation by making Pakistan liable for its violation. The execution of Jadhav stayed and court ordered Pakistan to provide him with all rights as well as to have effective review and reconsideration of his death sentence. This verdict is a resounding victory for our nation.”
SALIENT FEATURES On 17.07.2019, the world court rules in the favor of India in the case of Kulbhushan Jadhav and ordered Pakistan to review his conviction and sentencing and also grant him consular access. On 8th may 2017. India had initiated proceedings at ICJ in relation to an egregious violation by Pakistan of the Vienna convention on consular relation in 1953, in matter of arrest, confinement and trial of Kulbhushan Sudhir Jadhav the key of the ICJ judgment is: Ø Encroachment of the right of the nation are protected and the court founds that Pakistan had deprived India of theright to communicate with an have access to Lushan Jadhav and arranged for his legal representation, hence reached the obligation under Vienna convention on consular relation. Ø An effective review reconsideration of the conviction and sentence is ordered by the court and the execution was stayed and constitutes an indispensable condition. Ø Court-room has no doubt as evidence supported Jadhav nationality as an Indian national. Ø There are no bases to corner down that India misused it procedural right pattern when solicit the court to point out provincial measures in reference to this case. Ø The key feature of our Indian constitution is that there is no such commitment priority done by India in referenceto the present case other dispute settlement mechanism.
Previously instituting event before the court the objection of Pakistan cannot be withheld. Ø Evidences from the side of India fully satisfied the court and leaves no uncertainty that Mr. Kulbhushan is of Indian motherland. Ø The protestation resembling on the clean hand doctrine of Pakistan was dismissed. Ø Pakistan presented the arguments in reference to concerned application of Article 36 was not upheld. For enforcement of the accurate and fair judgment our Indian legal counsel acted enthusiastically by taking various crucial footprints in case of Kulbhushan Jadhav. The proceedings of the case took two years and two months to complete and the judgment was passed by president of the court judge Abdullatif Ahmed Yusuf on July 17, at the peace palace in The Hague, Netherlands. Key steps were taken to make this case more on the favor of our nation and they are as follows:- · First step towards the development, an application filed by India on 8th may 2017 initiating the proceedings against the Pakistan alleging that there is a violation of the Vienna Convention of consular relations of 24.04.1963 with respect to the particular aspect of kulbhushan jadhav who was charged on suspicion of espionage and terrorism. · Further the contention made in the favor of protecting the rights of the jadhav which were violated by Pakistani authorities and alleged that jadhav remained unknown to his rights under article 36 of the statute and government also denied to provide him consular access. · Another step of development is that on that particular day India also filed a petition in the direction to provincialinitiatives and prayed to the court to stay its execution and protect the safety of the jadhav. · Another step was that from 18 to 21 February 2019, public hearings were held and the court in another meeting represented the three contention which were raised by Pakistan pointing towards India alleged abuse of proceeding,rights & duties and wrongful conduct but in conclusion court directed that India’s application was entertained. · Over-viewing the sugar cups of the cake the court went through the examination that whatever the contention isupheld by Pakistan could not be entertained and the court came to a unbiased conclusion that Vienna convention is directly applied in the case nevertheless of the allegation that Mr. Kulbhushan Jadhav was busy in stying activity · Another merits for our nation is that the court examined the Pakistan that worked towards the hampering of itsobligation under the Vienna convention of Article 36 and also delayed in informing our nation about the detention and also kulbhushan Jadhav was not illuminated regardinghis rights and cornered that Pakistan has ruptured its obligations under Article 36 of Vienna convention. · Slipping to the India's third assert worried Pakistan heavy failure to surpass Indian consular officer to Mr. kulbhushan jadhav and not providing him the legal representation so the court ordered to Pakistan to provide the facilities to Jadhav without involving into a breach of obligation. · Another successful contention made by India is of restitution in integrum which means that India requested to the court to provide the once a year commitment of the military court and denied Pakistan from providing productive effect to the sentence and directed the Pakistan court to raise the foot in reference to releasing Kulbhushan Jadhav and toprovide the provision in order to safely landing to India. · All contentions of India are upheld by the court but the submission made by India for realizing Mr. Jadhav was notaccepted. · The pages of judiciary and the judgment of the ICJ was wholly inclined towards our nation i.e. the court directed Pakistan so in order to have a qualitative evaluation and analysis of the persuasion and sentence of Kulbhushan Jadhav.
CRITICAL ANALYSIS A Small plant can transform into tree robustly on when the soil is fertile similarly the base of the judiciary can stand energetically on the pillar namely truth. But the parties hoping the victory in favor of themselves depend upon the two arrows I.e. truth and destiny. The same is the case with the Kulbhushan Jadhav the brave officer of our nation who was charged for the espionage and terrorism. But the case is somewhat different from any other cases standing in our judiciary as this is the egoistic battle between two countries .i.e India v Pakistan. The judgment announced in the favor of India by ICJwith the majority of 15: 1 is a resonant victory according to the legal grounds and provides clarity to the country's obligation under VCCR. Another pit of hole created by Pakistan for itself is that the arrest was done only on suspicion which is notproven until now with proper evidence. The challenges raised that ICJ has no jurisdiction to tackle this matter as well as India has not approached ICJ with clean hands I e this is a legal doctrine which means that India has done wrongful conductby not providing assistance in investigation will not be able to get legal remedy also. Such type of baseless challenges was not entertained and judgment acted in the favor of our wonderland. This overwhelming judgment seems one of the great achievement for our nation but acting as a nostalgic stage as the main aim of our wonderland is to take back our diamond from the pit of the coal and to provide him with fresh air with a view of blossoming flower and shower of rain so that he can regain his happiness once again upon the darkness in his life.
Hope is the key element for the completion of any successful event as hope is the energetic medicine which provides enthusiasm and the bright light of positiveness in the soul of humans. Same is the scenario with our nation that all are hoping to take back off our brave human from the country who had arrested him on the rhetoric facts and not relied on true one. The nation Pakistan arrested Kulbhushan only on suspicion that the guy may be a spy or terrorist but the only truth for our universe is that qualms does not have any limit and no medicine is invented to overcome suspicion. The judiciary plays a prominent role in every one's life and its decisions and judgments are always relied on the evidences. This sounds to be our achievement that evidence given on the favor of our brave hero is supported by the apex court of Pakistanand no papers of the Pak nation could prove it to be wrong. The boat floating on living water looks more adventurous thanthe boat floating in the dead lake.
As in the floating water the boat automatically moves ahead with the heavy waves by facing all the hurdles and difficulties and lastly reaches to its bank but in the dead lake the boat need support of any living being asno hurdles and adventure is there because of no waves and finds difficult to reach its bank The only lesson which this statement is lighting is that where there will be adventure and hurdles the life will be more interesting and successful. Similarly our nation calmly and happily walking hand in hand in compliance of the verdict pronounced by the international house of justice no matter this is the nostalgic to us but safety of our citizen is much prominent than taking him back with bucket full of hurdles.
This resonant victory is welcomed by our nation with smile and enthusiasm. Where there is hope there is light and where there is light there is success.