Why Kulbhushan Jadav refuses to file a review petition and legal standard in that case

Nov 27, 2020

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 the 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 Pakistan had denied Jadhav a fair trial. 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 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 machinery (for adequate review and reconsideration)"" Bar and Bench had quoted Salve as saying.

The verdict of the ICJ, a wby means of had health Pakistan had to "provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence"" of Jadhav, to ensure that full weight is given to the effect of the violation of the rights outlined 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, raises 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.

Pakistan claims that its security forces arrested Jadhav from the restive Balochistan province on March 3, 2016 after he reportedly entered from Iran.

India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

In its 42-page order, the ICJ, while rejecting Pakistan's objection to admissibility of the Indian application in the case, had held that ""a continued stay of execution constitutes an indispensable condition for the effective review"" of the sentence of Jadhav.

The bench, however, rejected some remedies sought by India, including annulment of the military courts court's decision convicting Jadhav, his release and safe passage to India.

The ICJ upheld India's stand that Pakistan had ""breached"" the Vienna Convention on diplomatic relations, which gives countries the right to consular access when their nationals are arrested abroad.