The International Court of Justice (ICJ) judgment in the Kulbhushan Jadhav case, delivered on July 17, 2019, provided significant judicial relief for India.
As the ICJ entertains cases formally only between states, its judgments are seen as victories or losses for these states. In the Jadhav case, unlike many cases that go to the ICJ, the rights of an individual were directly involved, though they were represented and contested by states.
While the outcome may be politically and diplomatically crucial for both India and Pakistan, its immense immediate impact is on the right to life of an individual.
Irrespective of the nature of the crime which a person or persons may be accused of, consular access provides an essential right to a fair trial. Therefore, from the point of view of other Indian citizens similarly placed in foreign prisons and foreign nationals similarly situated in Indian prisons, consular access offers key support.
Significantly, India underlined this importance by arguing that denial of consular access needs to be considered as a violation of human rights under the International Covenant on Civil and Political Rights.
This case was unique as it had received attention from its very beginning, owing largely to India’s diplomatic engagement with Pakistan before approaching the ICJ. It, however, needs to be examined whether all individuals placed in situations similar to Jadhav are able to receive similar attention when it comes to gaining consular access.
Also read: For Pakistan, the ICJ’s Jadhav Ruling Calls for Critical Self-Evaluation
The Jadhav case should be taken as an occasion to address the issue of consular access involving India. Further, since India also continues with the death penalty, it may not be out of context to reflect on its particular legality in international law, in the light of views expressed by a judge in his separate opinion.
Consular access to Indians in foreign prisons
It is important to know how effectively Indians who are confined in foreign prisons are able to receive consular access.
In an answer to a question in the Lok Sabha, the Minister of State for External Affairs informed on July 3, 2019, that as of May 31, 2019, as many as 8,189 Indian nationals are confined in foreign prisons, which includes undertrials also.
Importantly, the minister further informed that “due to strong privacy laws prevailing in many countries, the local authorities do not share information on prisoners unless the person concerned consents to the disclosure of such information. Even countries which share information do not generally provide details about the people of foreign countries imprisoned”.
This suggests that there are challenges in getting consular access to Indian citizens imprisoned in foreign prisons. While it may not be possible to file cases before the ICJ for every case of denial of consular access, diplomatic engagement has to happen on behalf of all Indian nationals imprisoned abroad.
The minister’s response shows that the highest number of Indian citizens are imprisoned in Saudi Arabia (1,811), followed by UAE (1,392) and Nepal (1,160). While these numbers include the convicted and under trials, it is not clear how many of them are provided consular access.
Representative image. Photo: Reuters
It is imperative that all of them receive the same attention that Jadhav rightly received. As India aptly argued, consular access constitutes a human right under international law, it, therefore, has an obligation to protect the rights of its citizens who are placed in situations similar to Jadhav.
Consular access to foreign nationals in Indian prisons
Similar to Indian citizens imprisoned abroad, there are foreign nationals who are imprisoned in India.
As a party to the Vienna Convention on Consular Relations, India has an obligation to facilitate consular access to all the foreign citizens detained, arrested and sentenced in India. All the legal arguments India made against Pakistan through diplomatic channels and before the ICJ are equally applicable to foreign nationals in Indian prisons.
The records of the National Crime Records Bureau show that 6,370 foreign inmates are lodged in various prisons in India. This comprises 1.5% of the total number of prison inmates, 4,33,033. Of the total number of foreign inmates, undertrials constitute 51.1%, which is 3,258 people. All these foreign inmates are entitled to consular access like Jadhav is entitled to in Pakistan.
However, the reality seems to be different in this regard. A report on foreigners in Indian prisons shows the grim picture of the status of these foreign inmates in Indian prisons. According to the report, based on statistics gathered through Right to Information (RTI) requests, there are 3,908 foreign nationals confined in prisons across India.
Also read: India Likely Won’t be Allowed to Speak to Kulbhushan Jadhav in Private. Here’s Why.
The study further shows an appalling status of consular access in India. Of the total 3908 foreign nationals imprisoned, only 222, which is a mere 5.7% of prisoners, have received consular access. These figures show that there is a lot to be put in place. The report observes that embassy representatives have stated that in most cases they do not get information about the arrests of their nationals from police and must rely on newspaper reports and accordingly seek consular access.
Jadhav’s case should be considered an important example to understand how vital consular access is for those who languish in foreign prisons. Hence all foreign nationals imprisoned in India should be provided consular access by Indian officials.
Death penalty as a form of punishment
India asked the ICJ, inter alia, to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction in any manner, and direct it to release Jadhav and facilitate his safe passage to India.
ICJ, while upholding other requests, rejected the last one observing that it is beyond its jurisdiction, which is limited to interpretation and application of the Vienna Convention on Consular Relations.
India’s position, however, received support from Judge Cancado Trindade, who, while supporting the majority opinion, delivered a separate opinion.
Judge Trindade observed: “In my understanding, a decision of condemnation to death accompanying a violation of Article 36(1)(b) of the VCCR, — as in the present case of Jadhav, — cannot serve as basis for “review and reconsideration” simply: it is an unlawful decision which does not generate any effects. An unlawful condemnation to death is clearly discarded, and cannot be restated or reformulated at all. In such circumstances, death penalty itself is entirely discarded, not at all only opened simply to ‘review and reconsideration’”.
Judge Trindade differed with the restrictive reasoning of the majority opinion. He argued that in the Jadhav case, the ICJ should not restrict itself and should have taken into consideration the international human rights law instrument, International Covenant on Civil and Political Rights and other instruments prohibiting the death penalty.
The judge further said: “In my understanding, Pakistan’s effective “review and reconsideration” of the death sentence at issue against Mr. K.S. Jadhav cannot constitute again a death sentence.”
While emphasising this, he underlined the illegality of the death penalty in general under international law. He argued that “there is evidence that there is an evolving customary international law of prohibition of the death penalty, as sustained by an opinio juris communis …. There are nowadays, as already observed, international treaties on the abolition of the death penalty …. There remain some states, however, that in practice seem to overlook this relevant development, in keeping on applying death penalty; yet, they cannot at all pretend to exclude themselves from the evolving customary international law in prohibition of the death penalty. This would amount to a breach of it, in the present case interrelated with the breach of Article 36(1)(b) of the VCCR.”
Therefore, India, along with other countries which continue with the death penalty, should realise that there is an emerging customary international law which prohibits the death penalty as a form of punishment. Judge Trindade linked India’s request for the declaration of the sentence as violative of international law and the provisions of the Vienna Convention with the general prohibition of the death penalty in international law.
In other words, India’s request for annulment of the decision of the military court can be substantiated mainly by emphasising on the emerging customary international law on the prohibition of the death penalty. Judge Trindade underlined that countries like India who are continuing with the death penalty are doing so in violation of the evolving customary international law on the prohibition of the death penalty. This should be considered as an essential takeaway from the Jadhav case for evaluating India’s position on the death penalty.
Though the decisions of the ICJ have no binding force except between the parties and only in respect of that particular case, a state involved in a dispute is expected to practice in accordance with the positions it has taken in a case. For that reason, there is more that India should take from Jadhav case.
Srinivas Burra teaches at the Faculty of Legal Studies, South Asian University, New Delhi.