PIL in Supreme Court of India in favour of Cdr (Retd) Kulbhushan Sudhir Jadhav -- Languishing in Pakistani Jail

N.B.: This is a copy of the PIL that was sent to Hon'ble Chief Justice of India (CJI), after Indian Supreme Court's Registry refused to receive it on an untenable ground that the deadline for typing/ printing Petitions on Legal-size Paper had passed (because of undue Postal Delay by Indian Government's India Post, for several weeks, of the said Petition which was sent by Speed-Post from another City to Delhi) -- although all such Limitation Periods had already been extended en bloc by none other than the Bench of Hon'ble Chief Justice of India himself; in any case, a Principle of Justice is that substantive Justice ought to prevail over mere technical formalities. Unfortunately, despite the Letter written by the then President of Supreme Court Bar Association (the said Prez is also a Designated Senior Counsel) to Hon'ble CJI, 'Mention' before any Hon'ble Judge was not available either physically or virtually (i.e. via Video-Conferencing). Kindly also see the Post Script (infra).

SYNOPSIS

Cdr Kulbhushan Sudhir Jadhav (Retired) is an ex-Naval Officer and an Indian Citizen; he is on the Death Row in Pakistani jail -- whose location is not known to Indian Government, nor has Pakistan shared with Indian Government or Jadhav’s well-wishers in India the Judgment & Proceedings of Military Court-Martial held in Pakistan, which sentenced Jadhav to death; on the other hand, Hon’ble International Court of Justice (ICJ) had told Pakistan’s Government to allow ‘Consular Access’ to Jadhav and to provide an effective Appeal before a Civilian Court against the aforesaid sentence passed by a Military Court -- ‘Consular Access’ includes the ways & means for arranging effective legal representation/ defence for Jadhav. Nor has Pakistan allowed India to arrange for Jadhav’s legal representation/ defence before the proposed Civilian Appellate Court.

Hence, this humble Petition to exhaust a remedy that is always available when & wherever two Hon’ble Courts of Justice are in a position to communicate with each-other -- despite any remorse between two different political setups in those two countries, in which these two Hon’ble Apex Courts are situate. 

LIST OF DATES & EVENTS

03.03.2016  Pakistan claims that Kulbhushan Sudhir Jadhav (alias Hussein Mubarak Patel) aged about 49 is an Indian National and a serving Indian Navy Officer who was arrested from Mashkel in Balochistan province of Pakistan, but India vehemently says that Jadhav is a retired Officer of Indian Navy and was doing legitimate business in Iran -- from where he was unlawfully abducted by some militant group and handed over to Pakistan.

08.05.2017          Republic of India filed in the Registry of International Court of Justice (ICJ) an Application instituting proceedings against the Islamic Republic of Pakistan alleging violations of Vienna Convention on Consular Relations dated 24.04.1963 (the Vienna Convention) “in the matter of the detention and trial of an Indian National, Mr. Kulbhushan Sudhir Jadhav”.

18.05.2017          By Order dated 18.05. 2017, Hon’ble ICJ passed an Interim Stay of execution of Jadhav.     

17.07.2019          Hon’ble ICJ pronounced its Judgment directing Pakistan to, inter alia, provide ‘Consular Access’ to Jadhav, and to take all measures to provide effective review & reconsideration of the Sentence passed by Pakistan’s Military Court-Martial in Pakistan (it ought to include Judicial Review of Proceedings, Findings & Sentence); and, if necessary, to enact appropriate legislation for providing such a review and reconsideration.

                            It is reported by News Media that only conditional Consular Access was given to India; Pakistan has also failed to provide India with a complete & authenticated set of Court-Martial Proceedings, Findings & Sentence. Moreso, Pakistan refused to allow India to arrange for Legal Representation/ Defence of Jadhav before the Civilian Appellate Court in Pakistan.

28.02.2020          Hence this Writ Petition to meet the ends of Justice. 

 SUPREME COURT OF INDIA (EXTRA-ORDINARY ORIGINAL JURISDICTION)

 WRIT PETITION (CRIMINAL) NO………......./2020 (P.I.L.)

PUBLIC INTEREST LITIGATION

(A Writ Petition under Article 32 of the Constitution of India)

Cpl. Rohtash Singh Sahrawat (Retd.)

s/o Late Shri Raj Singh, aged about 60 years

Village & P.O. Daryapur Kalan, North-West Delhi-110039

Mobile: 09312515130                                                           ...Petitioner

versus

1) Union of India

through Secretary, Ministry of External Affairs

Central Secretariat (North Block) New Delhi-110001 

2) Secretary, Ministry of Home Affairs

Central Secretariat (North Block) New Delhi-110001     ...Respondents 

To

Hon’ble the Chief Justice of India and

His Companion Judges of the Supreme Court of India. 

The petitioner above-named most respectfully submits this petition seeking a Writ of mandamus or, in the alternative, a Direction or Order to the Union of India to initiate appropriate legal steps through diplomatic channels, International Fora or such other channels as are in aid of the Doctrine of Justice that is honoured by all International Judicial Fora -- with or without any International Treaty, on the following Facts, Law & Circumstances, amongst others, so that the ends of Justice are fully met in furtherance of Orders dated 18.05. 2017 & 17.07.2019 made by Hon’ble International Court of Justice (ICJ) in the case of Kulbhushan Sudhir Jadhav, an Indian National who is on death-row in a Pakistani jail whose location is not known to the Indian Government:-

1. Particulars of the cause against which the petition is made:

i) Kulbhushan Sudhir Jadhav (alias Hussein Mubarak Patel) aged about 49 is an Indian National. Pakistan claims that Jadhav is a serving Indian Navy Officer and was arrested from Mashkel in its Balochistan province on 03.03.2016, but India vehemently says that Jadhav is a retired Officer of Indian Navy and was doing legitimate business in Iran -- from where he was unlawfully abducted by some militant group and handed over to Pakistan. After a closed-door trial by a Pakistani Military Court, he was sentenced to death on charges of "espionage and terrorism" in that he was alleged to have spied for Indian Intelligence Agency, viz. the Research and Analysis Wing.

ii) On 08.05.2017, the Republic of India filed in the Registry of International Court of Justice (ICJ) an Application instituting proceedings against the Islamic Republic of Pakistan alleging violations of the Vienna Convention on Consular Relations dated 24.04.1963 (hereinafter referred to as Vienna Convention) “in the matter of the detention and trial of an Indian National, Mr. Kulbhushan Sudhir Jadhav”; and by Order dated 18.05. 2017, ICJ indicated the following provisional measures: “Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”

On 18.02.2019, India opened its Oral Arguments before the ICJ by saying, inter alia, that Jadhav had been awarded the extreme death sentence through a farcical trial by a military court in Pakistan in egregious violation of the rights of consular access guaranteed under the Vienna Convention on Consular Relations, 1963.

India prayed, inter alia, that the military courts of Pakistan cannot command the confidence of ICJ and, therefore, should not be sanctified by a direction to them to review and reconsider the case; further that, for the reasons given by India in its Memorial and its Reply, India sought annulment of Mr. Jadhav’s conviction, and a direction that he be released forthwith.

In its Oral Reply, Pakistan said, inter alia, that even if ICJ were to hold that Article 36 of Vienna Convention applied to Kulbhushan’s case and a right to consular access was denied, a remedy of effective review & reconsideration lies before Pakistani High Court under Article 199 of the Constitution of Pakistan, and that the said remedy had been available to Commander Jadhav and his family at all material times since the pronouncement of his conviction on 10.04.2017.

ICJ delivered its Judgment & Order on 17.07.2019, and its salient points are:-India’s aforesaid Application to ICJ was admitted.

Alleged failure of Pakistan to inform Mr. Jadhav of his rights under paragraph 1 (b) of Article 36 of Vienna Convention was not contested by Pakistan; hence, ICJ found that Pakistan breached its obligation to inform Mr. Jadhav of his rights under the said paragraph 1 (b) of Article 36.

Pakistan was under obligation to inform, without delay, India’s Consular Office after Jadhav’s arrest and detention; but Notification of his arrest was made some three weeks after his arrest. Hence, ICJ found that Pakistan breached its obligation to inform India “without delay” of Mr. Jadhav’s arrest and detention.

ICJ further found that Pakistan breached its obligations under paragraph 1 (a) and (c) of Article 36 by denying Consular Officers of India access to Mr. Jadhav.

Pakistan is under obligation to cease internationally wrongful acts of a continuing character, and Mr. Jadhav is to be informed without further delay of his rights; Indian Consular Officers are to be given access to Jadhav, and be allowed to arrange for his legal representation.

The appropriate remedy is effective review and reconsideration of conviction and sentence of Mr. Jadhav, and full weight is to be given to the effect of violation of rights set forth in Article 36; though the choice of means for doing so are left to Pakistan, yet Pakistan is directed to take all measures to provide for effective review & reconsideration -- including, if necessary, by enacting appropriate legislation.

ICJ further declared that continued stay of execution constitutes condition for effective review and reconsideration of conviction and sentence of Mr. Jadhav.

However, ICJ overlooked the need to incorporate a specific direction, especially in view of alleged lynching in a Pakistani jail of another Indian National who was accused of sabotage by Pakistan (namely, Sarabjeet Singh), to direct Pakistan to ensure the safety of Jadhav while in Pakistan’s judicial custody. To give effect to its said direction, Hon’ble ICJ ought to have directed Pakistan to also provide a complete & authenticated set of Proceedings, Findings & Sentence of the Court-Martial to both Kulbhushan Sudhir Jadhav and to the Indian Consul -- without which effective ‘legal representation’ cannot be arranged. On 02.09.2019 Pakistan reportedly allowed only ‘conditional’ Consular access to Jadhav -- that is to say, in the presence and within the hearing of Pakistan’s such officials as possibly included Prosecution (this denies effective communication by the prisoner with those who are tasked with the duty, and corresponding right, to arrange for his legal representation). Moreso, as per News Media Reports Pakistan has said that it will not allow India to engage any Counsel to defend Mr Jadhav, nor will another Consular access be allowed; and further that Pakistan’s Executive will provide its own Lawyer to defend Jadhav in the aforesaid Appeal.

Hence, judicial intervention of My Lords at the highest level is most respectfully prayed in order to request, by way of a Letter Rogatory, the concerned Appellate High Court in Pakistan through the Supreme Court of Pakistan, to give serious consideration to the following Propositions of Law before either supporting or imposing a sentence of death or life-imprisonment or both upon Kulbhushan Sudhir Jadhav -- an Indian Permanent (for life) Commissioned Officer:-

a) Appendix III PART-I(A) IAFD-937(Revised) Form of Application for a Court-Martial of Army Rules 1954 prescribes that: 

(Instructions.-- An officer must be sentenced to be cashiered before he is awarded the punishment of death, imprisonment for life, ....) [Emphasis added]

b) However, Indian Army, Navy & Air Force Officers are Commissioned by His Excellency the President of the Republic of India and, thus, only H.E. the Indian President can ‘cashier’ such an Officer -- that, too, through a Court Martial convened by an Authority prescribed under the Indian Military Law either during his service-tenure or within a prescribed period after his retirement; since Cdr Jadhav cannot be cashiered now either by Indian Government or by Pakistani Government or by any of its Court-Martials, he can neither be executed nor incarcerated for Life in any jail in Pakistan. (Period.)

iii) By allegedly obtaining at Pune in November 2003 an Indian Passport under a fictitious name of ‘Hussein Mubarak Patel’, Kulbhushan Sudhir Jadhav has apparently committed an Offence punishable u/s 12 (1) (b) & (d) of Passports Act 1967; hence, a Writ, Direction or Order is liable to be issued to UOI to direct the concerned Authority in India to register an FIR against Kulbhushan Sudhir Jadhav; and, thereafter, through the concerned Trial Court to make a request (by way of a Letter Rogatory) to the Government of Pakistan to extradite Jadhav to India to stand Trial before the said Magisterial Court.2. The antecedents of the Petitioner are as under:

aa) That the petitioner is himself an ex-Serviceman and, hence, well-wisher of Cdr Kulbhushan Jadhav (Retd) who is also an ex-Serviceman.

bb) The present petition under Article 32 of the Constitution of India is being filed by way of Public Interest Litigation and the petitioner has no personal interest. The petition is being filed in the interest of protecting the Life & Liberty of an Indian National who is a Permanent Commissioned Officer (i.e. Commissioned for life) -- though retired from service, and is languishing on the Death-Row in a Pakistani Jail as a consequence of the Judgment & Order passed by a Pakistani Military Court in a farcical Trial, but without effective legal representation for his defence in a criminal trial having been either made or permitted by Pakistan’s Executive through any well-wisher or the Government of India before Appellate Civil Court despite specific directions issued by the ICJ in this regard (supra).

cc) That the petitioner is filing the present petition on his own and not at the instance of someone else. The litigation cost, including the advocate’s fee and the travelling expenses of the lawyer, if any, are being borne by petitioner himself.

3. Facts constituting the cause of action:A concise statement of facts, in chronological order and in separate paragraphs, has already been made in paragraph 1 above. And, in the interests of brevity, the same is treated as a part & parcel of this paragraph. 

4. Source of information:

The main source of information is the proceedings published by ICJ on its official website, and the contextual facts are based upon such News Reports as are found reasonably reliable -- by way of analysis & collation by the applicant personally. 

5. Details of remedies exhausted:

No effective remedy is available through Executive or Diplomatic means since Government of India has reportedly faced non-cooperation from Government of Pakistan, despite Hon’ble ICJ’s aforesaid Order, in arranging effective legal representation for Cdr Kulbhushan Jadhav (Retired) before Pakistan’s Appellate Civil Court; hence, the only ray of hope to meet the ends of Justice is through a Letter Rogatory between International Judicial Fraternity -- which shares implied brotherhood to unitedly secure the ends of Justice in each & every criminal trial brought to its notice, a Bond that transcends the need for an International Treaty.

Hence this humble Writ Petition in the nature of PIL, with a respectful Prayer to this Hon’ble Court to send a Judicial Request to the Supreme Court of Pakistan to uphold the Universal Basic Human Right to Justice -- Civil, Criminal & Political. 

6. Nature and extent of injury caused or likely to be caused to the public:

WHEREAS Justice is implicit in Basic Human Rights under the International Covenant on Civil & Political Rights, execution/ life-long incarceration of Jadhav will be a blatant Denial of Justice, in the light of above-mentioned Facts & Law, unless Hon’ble Judicial Fraternity across political boundaries stands united in support for Rule of Fair Trial -- so that import of the concept of expediency in judicial criminal trials may not become a ‘new normal’. 

7. Nature and extent of personal interest, if any, of the petitioner.The Petitioner has no personal interest in the above matter -- except that he is an Indian ex-Serviceman and believes that it is the Duty of all Indians to effectively defend in Civilian Courts of Justice ex-Military Personnel with the same zeal, patriotism & vigour as shown by our Armed Forces & Para-Military Forces in defending US, the Civilians, against our common enemies at the Borders.  

8. Details regarding any civil, criminal or revenue litigation, involving petitioner, or any of the petitioners, which has or could have a legal nexus with the issue(s) involved in the Public Interest Litigation. The petitioner is not involved in any such Litigation, as aforesaid. 

9. Whether issue was raised earlier; if so, with what result.

The aforesaid Grounds were never raised earlier -- not even before the ICJ.

Nor was any other P.I.L. filed by the petitioner, nor has any cost been awarded to or imposed upon the petitioner; moreso, no appreciation or stricture has been passed either in favour of or against the petitioner in any such Litigation. 

10. Whether concerned Government Authority was moved for relief(s) sought in the petition and if so, with what result.

In view of the facts, circumstances and law stated above, the sole legal remedy available at this stage between the two estranged neighbours, India & Pakistan, to meet the ends of Justice in the instant criminal trial is a peer-to-peer judicial request by way of a Letter Rogatory -- which is possible even if no facilitating International Treaty exists between the two geo-political entities involved. 

11. Grounds:

The Grounds are implicit in the facts, circumstances & law already submitted in paragraphs 1, 5, 6, 9 & 10 above; and, in the interests of brevity, the same are treated as a part & parcel of this paragraph. 

11A. Nature of Fundamental Right infringed:

An Indian National & ex-Serviceman Kulbhushan Sudhir Jadhav’s Internationally Recognised Basic Human Rights to Life, Liberty and a Fair Trial (due process or procedure that is just, fair & reasonable) have been infringed and are imminently likely to be infringed further -- these are included in Article 21 of Constitution. 

11B. It is hereby declared that no proceedings on the same subject-matter has been previously instituted in any Writ Court in India, as aforesaid.

12. Grounds for interim relief.

To show its bona fide and non-collusion with Kulbhushan Sudhir Jadhav in obtaining an Indian Passport under a fake name of Hussein Mubarak Patel, it is necessary for the Union of India (Respondent No.2) to instruct the appropriate Authority under it to register an FIR against Kulbhushan Sudhir Jadhav u/s 12 (1) (b) & (d) of the Passports Act 1967 and, thus, extradite him to stand trial here.

13. Main prayer:

This Hon’ble Court may be graciously pleased to send a Letter Rogatory to Hon’ble Supreme Court of Pakistan with a request that the latter may be pleased, in order to meet the ends of Justice, to:-

Direct such Civil Appellate Court of Pakistan as will ultimately (Pakistan is yet to provide for Appeal against Court-Martial) hear the Appeal of Kulbhushan Sudhir Jadhav (such Appeal is mandated by Hon’ble ICJ) to give serious consideration to the following Propositions of Law before either supporting or imposing a sentence of death or life-imprisonment or both upon Kulbhushan Sudhir Jadhav:-

i) Appendix III PART-I(A) IAFD-937(Revised) Form of Application for a Court-Martial of Army Rules 1954 prescribes that: 

(Instructions.-- An officer must be sentenced to be cashiered before he is awarded the punishment of death, imprisonment for life, ....) [Emphasis added]

ii) However, Indian Army, Navy & Air Force Officers are Commissioned by His Excellency the President of the Republic of India and, thus, only H.E. the Indian President can ‘cashier’ such an Officer -- that, too, through a Court Martial convened by an Authority prescribed under the Indian Military Law either during his service-tenure or within a prescribed period after his retirement; since Cdr Jadhav cannot be cashiered now either by the Indian Government or Pakistani Government or by any of its Court-Martials, he can neither be executed nor incarcerated for Life in any jail in Pakistan.

iii) It is well-recognised as dangerous to award ‘capital punishment’ on the basis of ‘circumstantial evidence’ alone. And it is even more dangerous to execute any prisoner on the basis of ‘self-incrimination’-- especially when no ‘discoveries’ have been made &/or seized or co-accused captured on the basis of such self-incrimination; and especially so if the self-incrimination has been made while in custody of Police or Military (‘prosecution’ itself). 14. Interim relief, if any, either directly or through Pakistan’s Supreme Court:

a) Direct Union of India (Respondent No.2) to instruct the appropriate Authority under it to register an FIR against Kulbhushan Sudhir Jadhav u/s 12 (1) (b) & (d) of Passports Act 1967;

b) Direct the Government of Pakistan, in view of alleged lynching in a Pakistani jail of Sarabjeet Singh (an Indian National) to ensure the safety of Kulbhushan Sudhir Jadhav as long as he is in Pakistan’s judicial custody;

c) Direct the Government of Pakistan to provide authenticated copies of complete Proceedings, Findings & Sentence of the Court-Martial to Government of India;

d) Pass such other writ, order & direction as may be deemed necessary &/or fit.                                                                                           

Place: New Delhi                                               (Gulshan Kumar Bajwa)

Date: 28.02.2020                                Advocate on-Record for Petitioner

 IN THE SUPREME COURT OF INDIA

 (EXTRA-ORDINARY ORIGINAL JURISDICTION)

 WRIT PETITION (CRIMINAL) NO………......./2020 (P.I.L.)

Cpl. Rohtash Singh Sahrawat (Retd.)                                       ...Petitioner

versus

Union of India & Anr                                                          ...Respondents 

AFFIDAVIT

I, Cpl. Rohtash Singh Sahrawat (Retd.) s/o Late Shri Raj Singh, aged about 60 years, r/o Village & P.O. Daryapur Kalan, North-West Delhi-110039, do hereby solemnly affirm & declare as under:

1. That I am the Petitioner in above matter, conversant with the facts of the case, and competent to affirm this affidavit.

2. That contents of paragraphs 1 to 11B at pages 1to 7 of Writ Petition (Criminal) are true to my personal knowledge &/or are based upon information obtained from documentary sources stated therein -- which are believed to be true. The rest of the paragraphs are Grounds & Prayers.

Further that there is no personal gain, private motive or oblique reason in filing the above-mentioned Public Interest Litigation.

I am a Retired ex-Serviceman, an Agriculturist and a Registered Clerk; my annual income is Rs.1.5-2.5 lakhs per annum -- being agricultural income, it fluctuates from year to year. My PAN No. is ALOPS8132Q, and Aadhaar No. is 7842 4864 0659. 

DEPONENT

Verified at New Delhi on this 28th day of February, 2020 that the contents of the above affidavit are true, and nothing has been concealed therefrom. 

 DEPONENT

Identified by:                                

AoR VERIFIED BY ME                                                      

                                                            Notary Public                                           

P.S.: Apparently, the aforesaid Letter to Hon'ble CJI, too, was disposed of by a non-LLB staff of Supreme Court of India (not Pakistan's Supreme Court) -- without placing the same before Hon'ble Judge(s).

However, fortunately the Petitioner had also sent a copy of the above Petition to Ministry of Defence (Government of India), and a Joint Secretary therein replied to Petitioner's AOR that the suggestions made in the said Petition had been noted. Jai Hind!