A PIL filed at the Delhi High Court seeking direction to be given to the Ministry of External Affairs (MEA) to approach the International Court of Justice (ICJ) for the release of Kulbhushan Jadhav was dismissed on April 19 by the bench of Acting Chief Justice Gita Mittal and Justice Anu Malhotra.
The PIL, filed by social activist Rahul Sharma, also sought protocols to be made on kidnapping of citizens from other countries.
The PIL sought response from the MEA on the possibilities for approaching the ICJ. Pakistan has denied consular access to India on grounds that the issue is of espionage and thus the protocols of Geneva Convention does not apply in such cases.
It may be recalled that Jadhav had been “arrested” by the Pakistani army in the Balochistan area of that country and the army hurriedly held a Field General Court Marshall (FGCM) in which Jadhav was sentenced to death.
India has opposed the death sentence, and has sought consular access several times, each time being denied. The case will come up for hearing at possibly the Lahore High Court or at Pakistan’s Supreme Court, as Jadhav is sure to appeal this sentence. He is not even being allowed to get legal counsel, against all international laws. The issue has brought India-Pakistan relations to a new low.
On April 19, the bench first inspected the matter of the writ to inspection. The bench asked the petitioner: “How did it reach the press before we even heard of it? We’re happy with the Right to Information by the public, but this is highly inappropriate. The registry is very strict about it. Are you Rahul Sharma?”
The petitioner’s representative said: “No”.
Present were respondents, the MEA representative and counsel. The counsel for the respondent replied: “He is equal to him. This matter has already been discussed in Parliament. Whatever is to be done is being done. It is a rarest of rare case. The government is united, the nation is united. The government is taking steps. Please dispose of this petition. She (MEA minister Sushma Swaraj) has assured the nation and the Parliament.”
The petitioner said: “May I persuade my senior that Indian law on abduction is different.”
This was not taken kindly by the bench, which said: “Kindly argue the matter in the writ petition. Please confine yourself in the matter. This is highly inappropriate. Show us where you have made representation to the government.”
The petitioner says: “It is a sensitive issue.”
To which the Acting Chief Justice replied: “I understand. But show us where is the representation? You just don’t come marching to court. We are entitled to ask you a question. Are you aware of any other Indian citizens being abducted?”
Petitioner said: “Yes, in Somalia.”
Bench: “Was the government inactive?”
Petitioner: “I filed a petition in the Supreme Court and got directions.”
Bench: “Did the government act after that?”
Petitioner: “No.”
Bench: “Please be clear then.”
Petitioner: “If they are saying they are ready to approach the ICJ, I have no problem.”
The bench came back after lunch and dismissed the petition, saying: “The court refuses to intervene. The government is taking necessary steps and to open proceedings may jeopardise this sensitive matter.”
—By India Legal Bureau