The Hindu – Takeaways from the Kulbhushan Jadhav case ruling

India’s more successful legal journey to the ICJ must now reshape New Delhi’s approach to potentially difficult situations

Arjun Subramaniam

New Delhi – India, 18 July 2019. Kulbhushan Jadhav, the former Indian Navy officer, who was allegedly abducted by Pakistani intelligence from Iran and sentenced to death on charges of espionage and terrorism by a farcical military court in Pakistan, has been given a glimmer of hope by the ruling of the International Court of Justice (ICJ).

Responding to a petition by India that sought an annulment of his death sentence because Pakistan had violated numerous international treaties and extracted irregular confessions under coercion, the ICJ, on July 17, 2019, ruled with a decisive vote (15-1) that Mr. Jadhav cannot be executed by Pakistan, and that he must be given adequate consular access and a fair trial.

The ruling also urged Pakistan to review his conviction. This constitutes a major diplomatic and legal victory for India, with Pakistan accusing India of ‘ambushing’ it at The Hague.

Focussed strategy

Given its rather lukewarm record in the past of securing the release of Indian detainees in Pakistan through bilateral negotiations, India’s strategy in this case has been to exploit increasing international acceptance that Pakistan was an emerging ‘rogue’ state.

Laying stress on Pakistan’s scant regard for Article 36 of the Vienna Convention on Consular Relations, it deals with the arrest, detention and trial of a foreign citizen, India’s counsel, Harish Salve, highlighted two compelling arguments. First was the arrest process, which was not accompanied by an immediate notification to Indian consular officials in Islamabad.

There was a delay of over three weeks before India was informed, and it was during this period, according to reliable sources from within Pakistan, that Mr Jadhav was subjected to all means of coercion and forced to sign a ‘confession taken under custody’ without adequate legal representation.

Second was the two-way denial of access and communication by any means between Mr. Jadhav and consular officials and a failure to inform him of the rights he enjoyed under the convention.

The legitimacy of military courts has always been controversial within the international legal system that emerged in the post-World War II era as a fast-track system of delivering skewed justice by authoritarian regimes and military dictatorships.

Purportedly set up in Pakistan in 2015 as a counter-terrorist and anti-corruption initiative, Mr Jadhav’s sentencing in April 2017 was based on confessions taken in captivity and is part of several arbitrary sentences by Pakistan’s Military Court.

Violation of rights

The International Covenant on Civil and Political Rights (ICCPR) recognises the right to an effective defence against criminal charges, and to a fair and impartial trial, in which the accused is represented by a lawyer of his choice.

By denying consular access, Pakistan has stood in gross violation of both the Vienna Convention and the ICCPR. Had due process been followed, and then had Mr. Jadhav been charged with espionage, India may not have had the necessary room to take the matter to the ICJ.

By attempting to circumvent the ‘due diligence’ process, Pakistan has exposed serious chinks in its legal environment and jeopardised its standing in the comity of nations. The Jadhav case has also revealed Pakistan’s desperation in its search for ‘proxies’ as drivers of the internal unrest in Balochistan.

Reliable sources within India’s intelligence agencies hint at the possibility of Mr Jadhav having been abducted by armed groups operating on the border between Iran and Balochistan.

Pakistan is known to have used proxy Sunni groups such as the Jaish al-Adl against Iran, and Iranian officials have often spoken to their Indian counterparts about Pakistan’s sponsorship of terrorist activities along the Iran-Pakistan border.

A testimony to the growing menace of this group is its recent designation as a front of Jundullah, which is a ‘Specially Designated Global Terrorist’.

India has shown both intent and resilience in attempting to secure the release of Mr. Jadhav despite the many hiccups along the way. Following a synergised approach steered by the National Security Adviser and the External Affairs Minister, India fought the kidnapping of Mr. Jadhav, an Indian national who was legitimately residing in Iran after retirement from the Indian Navy.

Realising, in 2017, following his death sentence that the overall deteriorating relations between India and Pakistan had closed the door on any bilateral way of securing his release, India rightly chose to go the ‘international way’ by fielding a formidable legal team led by the jurist, Harish Salve.

Sparing no efforts on the human aspects of the case too, India managed to get Mr Jadhav to meet his mother and wife after the death sentence was pronounced. The first success achieved by the Indian legal team was on May 9, 2017 when the ICJ sent an urgent message to the Prime Minister of Pakistan, urging him to stay the execution till India’s case was heard fully and the ICJ arrived at a verdict.

Moving slowly but surely through the legal battle for over two years, India, has been demonstrating significant synergy between various stakeholders in the case.

The final verdict will, hopefully, galvanise the Indian establishment to step on the pedal and exert pressure on Pakistan to rescind the death sentence and allow Mr Jadhav consular access and legitimate legal platform to mount his defence.

While it would be wishful thinking to assume that Mr Jadhav would return to India soon, there is a glimmer of hope on the horizon that the Indian strategic establishment would do well to exploit.

Having deftly navigated the legal and diplomatic channels and restrained the Pakistan military by securing manoeuvring space following the ICJ verdict, a leading power such as India must demonstrate its intent and capacity to extract desirable outcomes out of potentially difficult, or seemingly impossible situations. Kulbhushan Jadhav’s case is one such challenge.

Arjun Subramaniam is a strategic commentator and Visiting Professor at Ashoka University

This is an Indian reaction to the ruling of the International Court of Justice
I will look today for an article that reflects the Pakistani view
Man in Blue

The Hindu – Kartarpur Gurdwara: Pakistan agrees to allow year-long visa-free access

Second formal discussion between New Delhi and Islamabad makes progress on modalities of pilgrimage

Kallol Bhattacherjee

Lahore – Panjab – Pakistan, 14 July 2019. Pakistan on Sunday agreed to allow year-long visa-free access to Indian pilgrims to the holy Gurudwara of Kartarpur. The Ministry of External Affairs (MEA) said in a statement that discussions in this regard were conducted at the second formal meeting between the two sides that made progress on the modalities of the pilgrimage and took up the presence of Khalistan supporters in Pakistani territory.

“It was agreed to allow visa-free travel for the Indian passport holders and OCI cardholders seven days a week. Throughout the year, 5,000 pilgrims will be allowed to visit Kartarpur Sahib Gurudwara per day. The pilgrims will be allowed to travel as individuals or in groups and also on foot,” stated a press release from the MEA emphasising that India had urged that the holy shrine should be open to Indian citizens of all faiths.

India also urged Pakistan to prevent Khalistan supporters from misusing this historic initiative. “Concerns regarding individuals or organisations based in Pakistan who may try to disrupt the pilgrimage and misuse the opportunity to play with the sentiments of the pilgrims was shared. A dossier was handed over the Pakistan side to highlight concerns in this regard,” stated the MEA press note without explicitly naming the Khalistan supporters.

The discussion highlighted the preparatory work under way on both sides of the border for the 550 birth anniversary of Guru Nanak, the founder of Sikhism. India claimed that significant progress had been made in building the necessary infrastructure to handle the pilgrims from India and abroad. The statement claimed that Indian facilities would handle 15,000 pilgrims a day. The work is expected to be completed by October 31 this year, a week before the celebrations are expected to begin.

India also urged Pakistan to allow “Nagar Kirtan” from Delhi to Nankana Sahib in Pakistan in July and in October-November 2019 as part of the celebrations to mark the birth anniversary of the first Sikh Guru.

The Hindu – Man beaten up for Facebook post on consuming beef soup

Acting on a complaint by the victim, Mohamed Fisan, police detain four in Nagapattinam district of Tamil Nadu

R Rajaram

Tiruchi – Tamil Nadu – India, 12 July 2019. A 24-year-old man belonging to the Muslim community in Nagapattinam district was assaulted, allegedly by a gang of four of the same village, after he posted recently a photo of himself consuming beef soup on his Facebook account with a caption saying that he relished it. He was hospitalised.

The incident occurred at Poravachery village in the Kilvelur police station limits around 7 p.m. on Thursday. Police have detained N Dinesh Kumar (28), R Agathian (29) A Ganesh Kumar (27) and M Mohankumar (28).

Police sources said Mohamed Fisan runs a photocopying shop.

Police sources said Dinesh Kumar is a member of the Amma Makkal Munnetra Kazhagam and a local level office-bearer of the party.

The wordy quarrel took a violent turn and the four allegedly assaulted Mohammed Fisan with a wooden log and iron rod on his left shoulder and wrist, said the police.

The injured Mohamed Fisan was later admitted to the Nagapattinam Government Hospital as an in-patient. The incident created a furore among the victim’s relatives and acquaintances, who demanded action against the attackers.

Acting on a complaint from Mohamed Fisan, the Kilvelur Police detained Dinesh Kumar, Agathiyan, Ganeshkumar and Mohankumar and conducted enquiries with them.

A case has been registered against the accused under IPC sections 153(A) promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony 307 (attempt to murder) 506(ii) (criminal intimidation) 324 (Voluntarily causing hurt by dangerous weapons or means) and 294 (b) (uttering obscene words in public place).

The Hindu – What happened to law against mob lynching, asks BSP

In Lok Sabha, party MP Danish Ali says the incidents are ‘an assault on democracy’

Special Correspondent

New Delhi – India, 09 July 2019. Leader of the Bahujan Samaj Party legislature party in the Lok Sabha, Kunwar Danish Ali, on Tuesday raised the issue of mob lynching in various parts of the country, specifically mentioning the case of Tabrez Ansari who was killed in Jharkhand. During Zero Hour, he demanded to know what the government was doing in terms of framing a law against mob lynching.

Mr Ali, a first term MP from Amroha, said the incidents of mob lynching were “an assault on democracy.” “Even after a clear direction from the Supreme Court in 2018 that there should be a law against mob lynching, I want to ask the government, with the Deputy Leader of the House present, whether any such law is on the anvil,” he said. There were disturbances during the submission and it was cut short.

A Supreme Court Bench headed by then Chief Justice Dipak Misra said “people must realise that mob violence and taking of law into their hands will invite the wrath of the law.” The Bench also comprised Justices A M Khanwilkar and D Y Chandrachud.

The court had also asked the Union Home Ministry and State Home Departments to file replies on what they had done to curb mob violence.

The Hindu – India slams UN rights office report on J&K as continuation of ‘false narrative’

New Delhi – India, 08 July 2019. In an update of a report on Kashmir released last year by the Office of the UN High Commissioner for Human Rights, it claimed that ‘neither India nor Pakistan have taken any concrete steps to address the numerous concerns raised.’

India on 08 July lodged a strong protest with the United Nation rights office over its report on the situation in Jammu and Kashmir and asserted that it is merely a continuation of the earlier “false and motivated” narrative and ignores the core issue of cross-border terrorism emanating from Pakistan.

Last year, the Office of the UN High Commissioner for Human Rights (OHCHR) released its first-ever report on Kashmir. In an update of that report on July 8, it claimed that “neither India nor Pakistan have taken any concrete steps to address the numerous concerns raised”.

Hitting out at the report, Ministry of External Affairs spokesperson Raveesh Kumar said, “The update of the report of the OHCHR is merely a continuation of the earlier false and motivated narrative on the situation in the Indian State of Jammu and Kashmir.”

The assertions in the report are in violation of India’s sovereignty and territorial integrity and ignore the core issue of cross-border terrorism, he said.

“A situation created by years of cross-border terrorist attacks emanating from Pakistan has been ‘analysed’ without any reference to its causality. The update seems to be a contrived effort to create an artificial parity between the world’s largest and the most vibrant democracy and a country that openly practices state-sponsored terrorism,” Mr. Kumar said.

“We have registered our strong protest regarding the update with the Office of the High Commissioner for Human Rights,” he said.

The Hindu – Amartya Sen says ‘Jai Shri Ram’ not part of Kolkata’s culture

Slogan is a recent import and used as a pretext to beat people up, he states.

Staff Reporter

Kolkata – West Bengal – India, 06 July 2019. Economist and Nobel laureate Amartya Sen has said the affinity towards the slogan, ‘Jai Shri Ram’, was a recent development in West Bengal and not part of Kolkata’s culture.

It was not a phrase to which any consequence was attributed earlier “in my days,” he said “It, Jai Shri Ram, is a recent import used as a pretext to beat people up,” he said in an interaction with students of Jadavpur University in Kolkata, where he was a professor of economics in the mid-fifties, on Friday.

Earlier in the day, at a seminar in the city on advancement of education through teachers’ capabilities, Professor Sen said when “someone is asked to alight a rickshaw, told to repeat a particular phrase and then hit with a stick if the person refused to say so then then I am alarmed.”

At least a dozen cases had surfaced since the declaration of the recent general election results when members of a minority community were beaten up in the State allegedly even after saying ‘Jai Shri Ram.’ On Wednesday, an 11-year-old boy was thrashed in Hooghly district allegedly for refusing to say ‘Jai Shri Ram.’

Professor Sen, however, did not mention any particular incident but indicated that such incidents were growing. “We do not want to discriminate between various castes, religion or communities, but it is increasing,” he said at the seminar.

Later in the evening, in Jadavpur University, where he interacted with eminent social scientist Partha Chatterjee, Professor Sen reiterated the issue of discrimination.

“These days, when I hear that members of a particular community are scared and going out of their houses in this city with an element of fear, then I fail to recognise this city, the city of my pride. We need to ask questions now,” he said.

Professor Sen was interacting with Professor Chatterjee on ‘Kolkata after Independence: A personal memoir’ that is possibly part of his forthcoming autobiography.

‘Hindu Mahasabha introduced similar culture’

He further said in the question and answer session that Bengalis were not connected with “the culture” of ‘Jai Shri Ram’ or Ram Navami but this new culture was imported to promote divisive politics in the State.

He argued that the Hindu Mahasabha once introduced a similar culture in the State to create an atmosphere of divisive politics. “For the same reason, this ‘Jai Shri Ram’ slogan is introduced,” he said.

Professor Sen extensively discussed his student days in Presidency College [now a university], the excitement in the university area in central Kolkata or the iconic Coffee House, his years as a student with its warmth and the politics of the 1950s.

He also fondly reminisced about his early years in Jadavpur University as a teacher and his days at Cambridge University.

Gandhi Bhavan, the main auditorium of Jadavpur University, was chock-a-block and many could not enter the auditorium to listen to the interaction.

A few who came from the districts were upset and later posted on social media asking why the event could not be hosted in a bigger space.

BJP State president Dilip Ghosh, however, said that “nobody is listening to intellectuals like Amartya Sen”.

He said, “Everywhere, people are raising both their hands to say ‘Jai Shri Ram.’ Communists are finished”.

The Hindu – Gauri Lankesh murder: Rahul, Yechury plead not guilty in defamation case filed by RSS worker

Both the leaders have also been granted permanent exemption in the case and the matter will be heard on September 21.

Sonam Saigal

Mumbai – Maharashstra – India, 04 July 2019. Congress leader Rahul Gandhi and CPI(M) general secretary Sitaram Yechury pleaded “not guilty” before the Mazgaon court on July 4 in a criminal defamation case filed against them by a Rashtriya Swayamsevak Sangh (RSS) worker for making allegations against the Sangh after the murder of journalist Gauri Lankesh.

Metropolitan magistrate P I Mokashi granted bail to Mr Gandhi on the surety of ex-MP Eknath Gaikwad and Mr Yechury was granted bail on the surety of CPI (M) party worker Shantaram Mankaumare.

Both the leaders have also been granted permanent exemption in the case and the matter will be heard on September 21.

Fight of ideology

Addressing the press outside the court, Mr Gandhi said, “this is a fight of the ideology. I will keep fighting and I am enjoying my fight.”

Complainant advocate Dhrutiman Joshi alleged that Mr Gandhi, while speaking to a reporter outside the Parliament, had linked the RSS with the Gauri Lankesh murder.

Mr Gandhi had allegedly said, “Anybody who speaks against the ideology of the BJP [Bharatiya Janata Party], against the ideology of the RSS is pressured, beaten, attacked and even killed”.

Mr Yechury also allegedly made a statement that it was the RSS ideology and RSS men who had killed Gauri.

Earlier, the text of the statements was submitted to the court. The Byculla police is investigating the case lodged under Section 500 (punishment for defamation) of the Indian Penal Code (IPC) in September 2017.

On February 21, metropolitan magistrate P K Deshpande recorded, “Upon perusal of the material placed before the court, I find the statements defamatory in nature. Mr Gandhi and Mr Yechury had no right to make such statements without verifying facts.

No investigating agency can conclude that RSS or its followers were involved in the alleged murder of journalist Gauri Lankesh. I find sufficient grounds to proceed against them for offence punishable under Section 500 of IPC.”

The Hindu – SIT probing anti-Sikh riots to reopen cases

Centre clears fresh investigation, trial

Vijaita Singh

New Delhi – UK, 02 July 2019. The Union Home Ministry has expanded the ambit of the probe into the 1984 anti-Sikh riots cases by enabling the Special Investigation Team (SIT) to reopen investigations in all the cases in which trial had been completed and the accused were discharged.

A senior official said the SIT is examining a number of such cases that will be reinvestigated and sent for trial again.

On legal opinion

“We sought legal opinion and concluded that such cases pertaining to the 1984 Sikh riots, in which the accused were discharged or acquitted, could also be investigated again. The SIT is compiling the list,” said the official.

A year after the BJP came to power in 2014, the Home Ministry announced a three-member SIT for re-investigation of the anti-Sikh riot cases, mainly in Delhi. Its mandate was to “re-investigate the appropriately serious criminal cases which were filed in the National Capital Territory of Delhi in connection with the 1984 riots and have since been closed.”

It was also asked to file fresh chargesheets if evidence was available.

The SIT secured its first conviction in November 2018, when a Delhi court awarded death sentence to one of the accused and life imprisonment to another accused for killing two Sikh men, Hardev Singh, 24, and Avtar Singh, 26, in Mahipalpur. The case had been closed by Delhi Police in 1994 for lack of evidence.

Scope widened

The MHA has since increased the scope of investigations after it received a representation from the Delhi Sikh Gurudwara Management Committee (DSGMC).

“Looking at the seriousness of criminal cases relating to 1984 riots cases, the competent authority has decided that the SIT may also investigate/ further investigate/ re-investigate the appropriately serious cases, which have been closed on account of the discharge of the accused, if any, on fresh evidence/facts coming to light,” the MHA said in an order.

The term of the SIT is to end on July 31.

Kamal Nath case

General Secretary of DSGMC Manjinder Singh Sirsa claimed the notification could put senior Congress leader and Madhya Pradesh chief minister Kamal Nath in the dock. Mr Nath was a senior Congress leader then.

“Kamal Nath’s name was never included registered in the FIR number 601/84 that was registered at Parliament Street police station. Police never investigated him. The five accused persons named in the said FIR were accommodated in the official residence of Kamal Nath then. All of them were discharged due to lack of evidence. The SIT will investigate this case also,” Mr. Sirsa claimed.

In December 2018, the Supreme Court had appointed another SIT headed by Justice (retd) S.N. Dhingra to further probe 186 cases pertaining to Sikh riots.

On January 10, the Dhingra committee sought information from the public regarding 84 cases filed in Delhi from the years 1984-1987 that had earlier been closed.

The Hindu – American Sikh activists demand apology from Kamala Harris for defending discriminatory policy in 2011

Washington DC – USA, 30 June 2019. A group of Sikh activists has launched an online petition asking Indian-American Democratic presidential candidate Kamala Harris to apologise to the community for allegedly defending a discriminatory policy in 2011.

In a statement, the Sikh activists alleged that during her tenure as California’s Attorney General, Harris defended a policy that prohibited state prison guards from keeping beards for religious reasons, even though exceptions were given for medical reasons.

The case settled without a policy change in 2011, prompting the USA Department of Justice to open a civil rights investigation and forcing California Sikhs to successfully lobby for stronger workplace religious freedom laws in the state the following year.

Kamala Harris lectures her opponents on civil rights, but she needs to apologise for trampling on the civil rights of Sikh Americans as California’s attorney general, Rajdeep Singh Jolly, a lawyer and political consultant in Washington, DC, said.

He said that Ms Harris denied religious freedom to Sikh-Americans even when the Obama administration was taking historic steps to allow it. While the Obama/Biden administration was taking historic steps to allow observant Sikhs to serve in the USA military, Ms Harris was fighting hard to deny religious freedom and equal opportunity to Sikh Americans, Jolly said.

Winty Singh, author of the American Turban blog and commentator on Sikh American issues, said Ms Harris’ civil rights rhetoric will ring hollow until she addresses her defence of workplace discrimination against Sikhs.

It’s her opportunity now to right that wrong, he said.

The Kamala Harris campaign did not immediately respond to the email sent seeking their reaction on the allegations by the group.