Kulbhushan Jadhav's 'refusal' to file review petition nullifies hard-fought gains in ICJ

His decision to waive the rights for a review petition puts India in a tough spot

Kulbhushan Jadhav who was sentenced to death by a Pakistani military court on charges of espionage and terrorism Kulbhushan Jadhav who was sentenced to death by a Pakistani military court on charges of espionage and terrorism.

Pakistan has a new 'K' card: Kulbhushan Jadhav. The former Navy officer, arrested on charges of espionage and is facing death row, has refused to file a review petition against his sentence, according to Pakistan's additional attorney general Ahmed Irfan. Jadhav's refusal to file a review petition in civil court effectively ends the possibility of another trial—this time with adequate legal representation and scrutiny—which International Court of Justice's hard-fought verdict offered.

Jadhav, however, will continue to follow up on his mercy petition pending with the President. His decision to waive the rights for a review petition puts India in a tough spot.

India had argued that Jadhav had been denied a fair trial by Pakistan. Harish Salve, India’s legal counsel in the case at the International Court of Justice, had pointed out that the military trial after which Jadhav was sentenced to death was a sham.

Earlier this year, at a lecture organised by the Akhil Bharatiya Adhivakta Parishad, Salve had said, “It has become a huge ego problem for Pakistan. We were hoping they would let him (Jadhav) go. They haven't. We have written four-five letters. They just keep denying.” “We have now been in a tussle with Pakistan trying to get them to set up a machinery (for adequate review and reconsideration)” Bar and Bench had quoted Salve as saying.

The verdict of the ICJ—a win for Jadhav—had held that Pakistan had to “provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence'' of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention. The court had also directed Pakistan to provide consular access to India.

Pakistan had deprived India the right to have access to Jadhav in detention as well as the right to arrange for his legal representation. As Pakistan did not provide Jadhav with legal representation, even the confession—which Pakistan had held up— was not considered valid.

Pakistan had argued that the law provided recourse for Jadhav to appeal against his verdict. However, the ICJ's order indicated that Pakistan had to “provide effective review and reconsideration'' of the sentence. In May 2020, Pakistan enacted the International Court of Justice Review and Reconsideration Ordinance, according to Irfan.

The ordinance fixed a time of 60 days for an appeal to be filed by Jadhav, his family or the Indian high commission in Islamabad. Jadhav, who was invited on June 17 to file a petition for review, refused. He was also offered assistance for legal representation, another offer Jadhav chose to refuse.

His refusal to file a review petition sits well with the narrative that Pakistan has chosen to build. Jadhav, Pakistan had claimed in its arguments in court, had waived outside representation. But his decision to waive the review petition, effectively squandering the gains of a hard-fought victory at the ICJ, as well as Pakistan's decision to call a special press conference to announce this decision, merely days before the time elapses, raise serious questions. Even so, as the consular access to Jadhav, a clear directive by the ICJ, was not smooth. India finally accepted the invitation to consular access, despite reservations to the way that it was provided, in September. Pakistan, now claims that it is willing to allow Jadhav to meet his father and his wife—on humanitarian grounds.