New Delhi: Effectively scuttling the window offered by Pakistan to Indian officials for meeting Kulbhushan Jadhav on Friday, India has rejected Pakistan’s conditions and asked for “unimpeded” consular access instead.
New Delhi has stressed that the meeting between Indian officials and the incarcerated Indian national should necessarily be free from “intimidation and reprisal”.
India had earlier responded to Pakistan’s July 30 proposal of consular access by putting the ball in Islamabad’s court.
“Pakistan has been asked yesterday [August 1] to provide unimpeded consular access to Shri Kulbhushan Jadhav, in an environment free from the fear of intimidation and reprisal, in the light of the orders of the International Court of Justice. Their response is now awaited,” official sources told The Wire on Friday.
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The reference to “unimpeded” consular access in environment “free of intimidation and reprisal” is an implicit indication that India wants a private and confidential conversation with Jadhav.
Islamabad had offered to facilitate the meeting on Friday under “Pakistani laws”, which was understood to have meant that Pakistani officials would be present and the proceedings of the meeting would be recorded through electronic means.
On July 17, the Hague-based International Court of Justice had found Pakistan to have breached its obligations by not informing Jadhav of his rights to consular access under Article 36(1) of 1963 Vienna Convention on Consular Relations.
The judgment ruled – by 15 votes to one – that Pakistan is “under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations”.
The difference between India and Pakistan’s positions on the nature of consular access is aggravated by the fact that Article 36 is silent on this aspect. There is no explicit mention in this section that a prisoner had right to a “private” consular access.
Consequently, as The Wire has reported earlier, different countries have formulated their own rules, which take off from their own laws, on consular access.
Also read: Explainer | Kulbhushan Jadhav Case: The Legal Arguments
This is allowed under section 2 of Article 36, which says that rights will be exercised “in conformity with the laws and regulations of the receiving state”. However, this provision is also subject to a condition that the domestic laws had to enable “full effect” to the “purposes for which the rights accorded under this article are intended.”
However, Pakistani legal guidelines have no mention of the manner in which consular access has to be managed. Till now, it has been customary practice for at least one Pakistani official to be present when Indian consular officials have met Indian nationals incarcerated in Pakistani jails.
However, the repeated reference to the ICJ order likely means that India considers Jadhav’s consular access to be in a unique category, which does not have to be referenced by previous occasions.