Kulbhushan Jadhav case: ICJ to give verdict on death sentence by Pakistan today

Three days after it finished hearings in India's plea for directions to Pakistan to suspend the death sentence awarded to former Indian naval officer Kulbushhan Jadhav by a military court there, the International Court of Justice (ICJ) will deliver its verdict on Thursday afternoon.

India has sought immediate suspension of Jadhav's death sentence, also expressing fears that Pakistan could execute him even before the ICJ decided its plea.

However, it now emerges that before India decided to move the International Court of Justice (ICJ) in the first week of May, the government had spent a lot of time deliberating on the possible "consequences" of the move.

For before moving the ICJ, the government had to take into consideration that this move would mean that, if it succeeded, Pakistan could in future try and take the same route against India in the same forum, especially to help Pakistan-trained terrorists caught by Indian security forces.

In the end, after hectic parleys, it was decided at the highest level that such a possibility couldn't be allowed to stand in the way of Indian government coming to the assistance of Jadhav, who, India strongly feels, had been wrongly convicted and sentenced to death.

"India has always played by the book and has never allowed its territory to be used for terror activities aimed at another country. We have nothing to hide. This is the reason we decided to move the ICJ," top sources privy to discussions told DNA.

Multiple sources in the Ministry of External Affairs, Law Ministry and the security establishment put together the sequence of events leading to the filing of the case at The Hague.

According to sources, worried that Pakistan could execute Jadhav any day, Minister for External Affairs Sushma Swaraj personally consulted legal and foreign affairs experts.

A retired foreign service officer was also drafted as a consultant to assist in the plans.

However, when the decision got stuck due to the wording of a key clause in the Agreement on Consular Access, a bilateral agreement dated May 21, 2008 between India and Pakistan, Swaraj called Minister of State for Law and Justice P P Chaudhary and asked him to take the final call.

Sources said, on May 3, Chaudhary, who was out of station, was summoned back to Delhi and asked to resolve the issue.

The issue pertained to Clause 6 of the agreement and which reads: "In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits."

This clause, many within the government felt, could be cited by Pakistan to refuse India's case. However, eventually, legal experts consulted by the government assured it that the bilateral agreement couldn't override the Vienna Convention on Consular Relations, 1963 and that India had a strong case.

Sources said that while the Vienna Convention allows two or more nations to enter into separate agreements "confirming or supplementing or extending or amplifying" the provisions of the Convention, the terms of any such agreement couldn't run counter to or be incompatible to the Convention.

It was also the view of the experts that Pakistan hadn't shown any valid ground to invoke Clause 6 of the bilateral agreement.

It was finally decided that in its case, India should categorically state that it wasn't seeking "reinforcement" of the bilateral agreement nor "basing its claim on any rights or obligations under it". Rather, it was basing its claim solely upon the Vienna Convention.

HOW IT UNFOLDED

• March 3, 2016: Kulbhushan Jadhav arrested by Pakistan on charges of spying.
   
• March 29, 2016: Pakistan releases video showing Jadhav “confessing” to his crimes.
   
• Dec 2016: Sartaj Aziz, foreign affairs advisor to Pak PM, admits there isn’t enough evidence against Jadhav
   
• April 4, 2017: Jadhav handed over a death sentence by a military court.
   
• April 26, 2017: Pakistan denies India’s 16th request for consular access to Jadhav.
   
• May 9, 2017: India petitions the ICJ, which stays the execution.