Kulbhushan Jadhav is a retired navy officer of India. He was arrested by Pakistan on 3^rd March 2016 on the suspicion that he was a spy sent by India. India received the news on 25^th March which was after a delay of 22 days. India asserted that Jadhav who was carrying on a business in Iran after retirement was abducted and falsely charged on the grounds of ‘terrorism and espionage’. In April 2017, The military court of Pakistan awarded the death sentence to Jadhav. After this judgement by the Pakistan court, India approached ICJ asking for consular access to Jadhav and challenging the sentence by the Pakistan court. 

Senior Advocate Harish Salve was the lead counsel in the case from India at the Heage based ICJ. In July last year when the ICJ pronounced its judgement, it asked Pakistan to ‘review and reconsider’ its decision on death sentence and allow India access to Kulbhushan without any delay. However, in an online meeting this year Harish salve from London said that India needs to decide as to whether it wants to go back to ICJ for consequential remedies as Pakistan has failed to comply with the judgement. To this Pakistan Spokesperson, Aisha Farooqi replied that Pakistan has complied with the judgement and is firm on continuing to do so as the case proceeds further, she also stated that they have granted consular access and are reviewing the death sentence. 

WHAT IS THE KULBHUSHAN CASE?

Kulbhushan Jadhav is an Indian retired navy officer who is on death row in Pakistan. His father is a retired Mumbai police officer, his family resides in Mumbai and includes his two children and wife. He is charged on grounds of sabotage and espionage activities against Pakistan at the command of Indian Intelligence agency. India refuses to accept the allegations. 

Pakistan claims that Jadhav was arrested by Pakistan officials in Balochistan on 3^rd March 2016, where he entered using a fake passport which showed his name as Hussain Mubarak Patel. While India maintains that he was abducted from Iran, where he was carrying on business after he was retired from the Indian navy. India got the news about his detention on 25^th March, which was after 22 days from detention. After a month of his arrest, a video was released by Pakistan in which Jadhav was shown confessing that he’s a spy from India and had been carrying out activities in Balochistan and Karachi, still working with the Indian navy. The video was condemned by India. 

When Pakistan denied consular access to Jadhav under article 36 of the Vienna Convention and its military court sentenced him to death, India approached ICJ against Pakistan’s judgement and requested the release of Jadhav. On 17^th July 2019, the ICJ allowed consular access to Jadhav but denied his release. It ordered Pakistan to reconsider the death sentence. Consular access was allowed by Pakistan and Indian officer met Jadhav in Pakistan on 2^nd September 2019.

SALIENT FEATURES OF THE JUDGEMENT

ICJ pronounced the judgement in India’s favour with a ratio of 15:1. Some of the salient features of the Judgement are:

Admissibility– The court denied Pakistan’s objection on the admissibility of the matter, based on Article I of the Vienna convention whereby compulsory settlement of disputes to the Vienna Convention on consular access of 24^th April 1963 is provided. The court in a ratio of 15:1 said that the claim of non-admissibility by the Islamic Republic of Pakistan is not valid and India can access the court. 

Breach of obligation by Pakistan– The court said that Pakistan has breached its obligation incumbent upon it by Article 36 paragraph 1(b). It did not inform Kulbhushan about his right under article 36 and thereby deprived India of its right to consular access to the Individual Concerned. 

Deprived India of its Right– By not allowing India to have communication with Jadhav and denying access, Pakistan deprived India of its right to meet Jadhav and arrange Legal Representative for him and thereby breached Article 36, paragraph 1 (a) and (c) of Vienna Convention on Consular Access. 

Pakistan under Obligation to inform Jadhav without any delay about his right under Article 36 of the Vienna Convention. 

Review and Reconsideration– The court observes that Pakistan needs to review its decision, through its choosing, to ensure that weight is given to the violation under article 36 while taking into consideration article 139, 145 and 146 of the Vienna convention. 

Essential stay– The court said that the stay on execution is essential for the effective review and reconsideration by Pakistan. 

DEVELOPMENTS AFTER JUDGEMENT

Indian counsel in the Kulbhushan case on 3^rd may 2020 said that they are hoping to persuade Pakistan to release Jadhav from the backchannel on humanitarian grounds or whatever they want to call it, we want them to let him go. Salve commented that India might consider going back to ICJ due to non-compliance of the order by Pakistan; However, Pakistan on Sunday denied the allegations made by salve and said they are baseless and inaccurate. Pakistan’s spokesperson said that it is ‘regrettable’ that salve made statements which misrepresent facts adding that Pakistan has complied with all international obligations. 

Pakistan on 14^th may say that it is taking necessary steps to review the case as per the directions of ICJ and has already granted consular access to India.  On 16th of July, Pakistan allowed India consular access to Jadhav, which as per the officials was neither meaningful nor credible. On 7th August, Pakistan court constituted a three-member bench in response to the petition filed by the government to appoint a representative for the death row prisoner. The decision came after the Islamabad high court passed the directions to set up a larger bench to hear the dispute. The next hearing on the case is scheduled on 3rd September. The developments come after an argument between the foreign spokesperson of Pakistan and India, while the former claimed that India has been communicated through diplomatic means to appoint a lawyer for Jadhav the latter denied receiving any such communication. A spokesperson from the ministry of external affairs said that Pakistan is not only violating ICJ’s judgement but its own ordinance too.

CRITICAL ANALYSIS

`India and Pakistan share this long history. Amidst this, when an Indian retired officer was arrested by Pakistan on charges of espionage chaos took place. While Pakistan says that Jadhav is a spy, India maintains its stand that he was abducted by them from Iran where he was carrying business activities post-retirement. When the Pakistan court sentenced Jadhav to the death penalty, India decided to approach ICJ. India argued at ICJ that it had been denied consular access and was notified about the arrest 3 weeks later, it also put forth the request that kulbhushan is released by Pakistan. While ICJ directed Pakistan to review its decision it denied India’s request to order the release of kulbhushan. ICJ acknowledged the fact that Pakistan violated the International norms of consular access and did not inform Jadhav about his rights; Conviction and detention of Jadhav are not violative of Article 36 of Vienna convention as per ICJ. Appeals and Review petitions are not allowed on ICJ verdicts. After the verdict, Pakistan has assured that it will comply with ICJ’s judgement. On 2^nd September Pakistan allowed consular access to India and an Indian diplomat met Jadhav at the Pakistan jail for an hour, the entire proceeding was recorded in the presence of Pakistan officials; India contended that Jadhav seemed to be under immense pressure. India is demanding independent access to Jadhav because the capital punishment was awarded to him in a secret trial therefore, any information from Jadhav can help India. 

The Vienna Convention was signed to regulate diplomatic relations. A consular access treaty was also signed in the year 1963. The treaties were formed under the auspices of the United Nations. Once India is granted Independent access, it can arrange the best legal service for Jadhav allowed under Pakistan laws. Since the Pulwama attack tensions have been there between the two countries. After India struck down Article 370, new tensions have developed. Pakistan by holding a free and fair trial can ease the tensions. If a civil court conducts the trial help can be provided but if the military court continues to govern the case little can be done. If Pakistan denies following ICJ’s verdict, India might severe diplomatic relations and use International pressure, but all these measures must be used cautiously to maintain peace. 

CONCLUSION

The ICJ has given its verdict, Both countries have assured to follow the judgement. While Pakistan granted consular access to India, it was not entirely free from control. From the statements delivered by Harish salve, it seems that India might approach ICJ once again to remind Pakistan about the judgement. In reply to statements given by Advocate Salve, Pakistan’s spokesperson said that the statements are false and misrepresent the facts, and assured that Pakistan is following up with the verdict and will continue to abide by further pronouncements as the case proceeds. India’s co-operation would be required to ensure justice, thus both countries need to mutually co-operate to conclude. 

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When we talk about India, we do have a provision for abortions, sections 312-316 of the Indian Penal Code (IPC) and the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971 covers the abortion laws in India. The IPC sections 312-316 criminalise abortion; “the person undertaking the abortion as well as the doctor (or registered medical practitioner) facilitating the abortion are liable to be prosecuted.”

The government of India, though in 1971, enacted the MTP Act as an exception to the IPC. The act was enacted to exempt medical experts from the criminal obligation on the condition that they terminate the pregnancy as per sections 3 and 5 of the act. The prelude to the act expresses that it is, “An act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.” Therefore this whole system of legal abortion is doctor centric and prescribes abortion in specific circumstances.

The Proposed Amendment 2020

The MTP act was enacted in 1971 and hence the law needed changes, activists in India for the last decade have been pushing for legislative changes to the law.

The central cabinet’s sanction of the Medical Termination of Pregnancy (Amendment) Bill 2020 was reported on January 29. According to Prachin Kumar, “The amendment was long due and has made some anticipated changes demanded by women’s groups and courts, including the Supreme Court.”

Vrinda Grover in her column for the Hindustan Times wrote in March, that it’s a welcome amendment. She further states that the bill among other things, “proposes to place an unmarried woman and her partner at par with a married woman and her husband, in securing abortion due to contraceptive failure.” This is an idea that carries forward the rationale of the domestic violence act. The law on domestic violence makes no distinction between the rights and protections available to a married woman or a woman who is in a live-in relationship.

The Press Information Bureau on 29th January 2020 published the amendment, it stated that “The salient features of this act is enhancing the upper gestation limit from 20 weeks to 24 weeks for special categories of women which will be defined in the amendment to the MTP rules and would include vulnerable women, including survivors of rape, victims of incest and other vulnerable women like differently-abled women and minors.”

The MTP (amendment) bill still requires or rather proposes that a doctor sign off on termination of pregnancies up to 20 weeks old, and two doctors do the same for pregnancies between 20-24 weeks old.

The bill also intends to expand access to “safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds”, in case of foetal “abnormalities”. The proposed amendment makes it mandatory for the government to set up a medical board in all the states  and union territories. The responsibility of the board will be for the diagnosis of substantial foetal “abnormalities” that need termination after 24 weeks.

These are some of the proposed changes in the law. Now although there are certain good points in the amendment, a lot of activists think that this amendment missed to address some of the important issues.

Criticism of the Amendment

Shampa Sengupta in an online session organised by the Centre for Health Law, Ethics and Technology at Jindal (CHLET), Global Law School, Sonipat, strongly objected to the language used by the PIB in its announcement of 29th January 2020 regarding the amendment. “It’s not from the department that looks into the disability affairs.. But that does not mean you can use a word as ‘differently-abled’, it is not legally accepted in our country”, said Sengupta about the announcement.

Dr. Aqsa Shaikh in the same series of sessions organised by the CHLET said that it’s very unfortunate that it took almost 50 years for the government to realize that the MTP Act needed some changes. According to her, these changes are still insufficient, stakeholders have not been consulted, and a very patriarchal approach has been adopted. Shaikh further stated that “Under the MTP, the pregnant person does not have a choice, the person must seek permission. If the permission is granted then the doctor will conduct the procedure, else, the doctor will not. So that approach has to change.”

Tejasvi Savekari of Saheli Sangh in the session pointed out that during this Covid-19 pandemic, and because of the resultant lockdown, a lot of abortion cases have been seen. In most of these cases, safe abortions could not be done because of a lack of access to safe abortions.

She raised a very valid question, “who will take responsibility for this? Instead of simplifying the system, the law is making it more complicated. Firstly one has to take permission from two registered doctors and then from the medical board. So much time will be lost in all this, so will a woman be able to get a safe abortion done? Does she not have a right over her own body? Is she not capable enough to make her own decisions?” She asserted the fact that there are absolutely no answers to these questions. She said that it’s unfortunate that the law had no consultation and it saw no protest at all.

Sex Workers and Their Plight

The life of a sex worker is not easy. There are various stereotypes associated with the profession and the sex workers have to deal with stereotypes when it comes to their abortion rights as well. Kiran Deshmukh of National Network of Sex Workers CHLET session revealed that sex workers are always treated unfairly and are discriminated most of the time.

Deshmukh said that when a sex worker is pregnant and when she goes to a civil hospital, the staff of the hospital does not treat her well because they know that she is a sex worker. The strong stereotype that a sex worker can’t have a child is visible in the actions of the hospital staff. According to Deshmukh, matters get worse when a pregnant person is also HIV positive. Then that person is discriminated against more than anyone else. She stated that “we consider this form of discrimination as violence and this violence will not end till we do not collectivize. Collectivizing is very important if we want to fight against this violence. The womb is mine, it is my right to decide to continue or to terminate the pregnancy. But the doctors do not listen to us, especially in civil hospitals.” She further added, “when we collectively say the same thing, they have to listen to us, and provide us services because the power of a finger is different from the power of a fist.”

The government has not taken into account the problems of the sex workers as is clear from Deshmuk’s statement and above discussed amendments.

No Consideration for Differently Abled

The proposed amendments have not given due consideration to the needs of the differently-abled persons. Rupasa Malik of CREA is of the view that proposed amendments to the MTP Bill 2020 are limited and that it, in no way, reflects the ‘transformative changes’ which are vital to the MTP Act which is extremely dated. Malik said, “there exists this idea that all women and girls with disabilities are asexual and, therefore, what is the need for even thinking about them in this context of abortion access?”

Shivangi Agrawal of Determined Art Movement, in another session organised by the CHLET on the topic ‘A Disability Rights Perspective on Abortion: A Nuanced Understanding’, said “When I first read the MTP Amendment, it said to me that disabled people are irrational for having lives, for existing in the world. I feel like the government has continuously ignored disabled activities and they do not value the decision-making capacity that disabled people have.” She further added, “I feel like this bill encompasses the idea that providing for disabled people is too much.”

Dipika Jain in her column in TheWire mentioned about the ‘abnormalities’. She wrote “disability rights advocates have argued that foetuses with potential disabilities should not be singled out for abortions. This reinforces the notion that persons with disabilities have less value than persons without disabilities, and that all fetuses with ‘abnormalities’ should be terminated. It should be the sole discretion of the pregnant person, in consultation with their doctor, to carry a pregnancy to full term or to abort, even if the foetus has a potential disability, cognitive impairment and/or other medical conditions.

Conclusion

Abortion is a matter of rights of a woman. Even the Supreme Court of India has recognized that in the landmark case of 2009, Suchita Srivastava v. Chandigarh Administration. The court said, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”

In 2017 in the case of Justice K.S. Puttaswamy v. Union of India, the SC identified privacy as a fundamental right under the Indian Constitution. The right to privacy within its scope includes the rights to bodily integrity, reproductive choice and decisional autonomy. Justice D.Y. Chandrachud cited the landmark 2009 case Suchita Srivastava v. Chandigarh Administration, in the Puttaswamy case.

It’s unfortunate that even after such decisions, the proposed amendments continue to maintain the original paternalistic doctor-centric framework of the MTP Act. The decision to terminate is still in the hands of the doctor and not the pregnant person. This needs to change.

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The encounter of criminals is not a novel thing in India; in fact, it is much more commonplace than capital punishment. So, more people are killed by the police without trial than criminals sentenced to the gallows through the proper procedure by our courts. If they are a violation of the due process of justice, how come they are still such widespread phenomena?

Why Extra-Judicial Killings Continue Unabated?

It is now a well-known fact that Indians have lost faith in the judicial system. Rampant with red-tapism, corruption, procedural delays and empty posts, the mammoth of a system takes years to fulfill its promises. As the Hindi film, Damini has immortalized: “Tareekh pe tareekh milti hai My Lord, insaaf nahi milta!” This is a sad reality for the majority of people who spend half of their lives trapped in the slow-paced monotony of courts for trivial cases. Over three crore cases are pending in the courts of the country, nearly 15% of them for more than 10 years! As a result, many extra-judicial forms of punishment are seen to bring timely ‘justice’ in places where the courts have been exhausted. For instance, it took nearly 7 years for Nirbhaya rapists to face their ultimate punishment, while the Telangana police disposed off the 2019 rape accused within a few days and were hailed as heroes. This is a bleak picture of our hollow system, which has come to prefer encounters over trials.

Apart from the inadequacy of the judicial system, public perceptions of justice are also responsible for these methods adopted by the police. Justice in India has retained its barbaric, orthodox roots that embrace a tit-for-tat approach tainted with violence. Public lynching of an accused is given moral backing and it is seen as the policemen’s duty to teach the defiant criminals a lesson. So of course encounters of criminals are met with applause and immortalized into Bollywood ‘masala’ scripts. The film industry, with its penchant for the heroic cop protagonist who takes matters in his own hands to rid the society of all evil, has enhanced public acceptance and appreciation of cops turning executioners. Even the police deem it easier to kill a suspect than go through the trouble of building a case and proving the accused’s guilt.

We as citizens view justice in absolute terms. But in reality, the matters of law are much more complex than the black and white camps of fair and unfair. There is a vast grey area that encompasses the latent aspects of truth, penal action, and reform. To simplify it through killing criminals is an insult to the very nature of justice and rule of law. The difference between the roles of Police and the Courts blurs in our mind to give way to a twisted system where the cops play judge, jury and executioner, when all their jobs permit is capturing criminals and bringing them before the law. Even those who do not support the law enforcement’s use of such means willingly turn a blind eye fearing retaliatory action. Unlike the US, a civil movement against the high-handedness of the cops is rendered almost impossible as the police are viewed as the ultimate dispenser of justice.

The Price to Pay

You cannot play with fire without getting burnt; you cannot embrace or allow one form of police brutality (re encounters) without offsetting a spiral of police-administered justice that violates our rights. The custodial torture and deaths of Jayaraj and Fenix are a product of this very system that is used to getting away with killings. It is this very lack of accountability that has put the sanctity of our democracy in peril, for absolute power corrupts absolutely. With few exceptions, most encounters today are jaded with shady details and fake charges. As was seen in Punjab during the heights of militancy, police killed anyone whom they suspected in the slightest to have a connection with insurgents. The same was practised in the case of Naxalites. So many lives were lost with no proof of their guilt presented for perusal.

A democracy guarantees certain rights to its citizens, even to convicts. Free and fair trial is a necessity not only of the accused but also the state in order to ascertain without a doubt that the allegations levelled are true. And even if found guilty, the quantum of punishment should be in proportion to the crime committed. This is the job of courts, not the police. Subverting due democratic process even for handing out punishment threatens the very foundations of our state. The means, after all, do not justify the end, and all logic contrary to this is a sign of approaching totalitarianism. India chose to be a democratic nation for a reason; hence the policing measures should reflect the same commitment instead of behaving in a manner reminiscent of our coloniser’s policies. And the police connivance with the underbelly of crime and politics forms an inescapable nexus which has reduced encounters to a political tool readily used, than a last resort method.

This trigger-happy attitude not only severely deprives the accused a chance to prove their innocence or receive punishment in accordance with their crime; it also dehumanizes them in our eyes. All criminals are not hard-core evil. They are born from us, sometimes because of us…Without due process, the truth about their circumstances and motives will never see the light of the day. If we deprive even the most heinous ones of their rights, we fail as a democracy. Equality before the law is a fundamental right, therefore a terrorist and a petty criminal both have the right to defend themselves in front of unbiased judges through due procedure laid down by the law. Our sense of justice is hence very punitive. We as a people do not believe in reform despite claiming the opposite and are content to see criminals incarcerated for life, or worse, dead. What is the point of locking up the bad guys if they do not become better? Do we want to kill all evil or dive to its roots and weed it out? That is for us to decide.

Reform the Norms

The law is reason without passion

Aristotle

This is one statement that has stood the test of time. There is no doubt that there are numerous criminals with blood on their hands that deserve to be punished, but their fate is for the law to decide. One organ of the law enforcement taking the entire law into their hands is not only a mockery of the system but also defeats the very purpose that due legal processes were created for. The law should punish and reform the accused and simultaneously grant a reprieve to the victim. We cannot imagine the pain of someone whose rights have been violated, and it would be unfair to tell them to wait until justice is served because no amount of judicial action can reverse their suffering. But justice is never served through wanton murders without trials. To deprive the accused of their chance to defend themselves, to kill whom you deem guilty, spells another violation of the law. And if the law-protectors break it brazenly, what is to stop the common man from doing so?

All the delays, extensive paperwork, ever-shifting dates that have made the judicial system so tedious and unattractive call for reform, not a subversion of the law. And not just the system, there is a strong need to change the public attitude and perception of justice, and replace it with a more reform-centric approach instead of plain retribution. For us to question the authorities that undermine the constitution is the first step towards a stronger, more accountable nation.

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