The government said on Monday it will consult the Supreme Court on approaching the International Court of Justice (ICJ) over the death of Kargil martyr Captain Saurabh Kalia, who was allegedly tortured and killed in captivity by Pakistani troops during the 1999 war.
"If the Supreme Court says we can go to the International Court of Justice...we will do that," external affairs minister Sushma Swaraj said amid growing pressure.
The external affairs ministry clarified there is a provision that stops India and Pakistan approach the ICJ in The Hague against each other in war-related matters since both are Commonwealth nations.
"Saurabh Kalia's case is an exceptional circumstance," Swaraj said, just hours after the martyr's father criticised the government for "not taking concrete steps".
Foreign ministry spokesperson Vikas Swarup said in the case filed by Captain Kalia’s family in the Supreme Court, the government has held the conventional position under the Commonwealth provisions.
“If the government feels there is a strong case to go to the ICJ on this matter of the conduct of the Pakistan army, it can do so. But this would draw strong reactions from Pakistan,” said former foreign secretary Lalit Mansingh. He said India should also be ready for Pakistan raking up similar charges against India. “Pakistan is not going to accept the jurisdiction of the ICJ in such a case and admit its army tortured an Indian army officer,” said another observer on condition of anonymity.
NK Kalia, the father, said he was optimistic that the "honourable court (SC) will take appropriate and suitable action" and direct the government to take up the matter with Pakistan and the ICJ. He has been raising the issue since long.
Captain Kalia, one of the first officers to report the 1999 incursion, and five other soldiers were taken prisoners by Pakistani troops during the Kargil War. They were held captive and allegedly tortured before their badly mangled bodies were handed back to the Indian authorities on June 9, 1999. Pakistan has consistently denied the charges of torture, saying the soldiers may have died because of poor weather conditions.
The UPA told the Supreme Court in 2013 it was bound by the Simla Agreement of 1972, so it can’t treat Saurabh Kalia’s case as a war crime. The BJP, while in Opposition, had lashed out at the UPA government for not acting against Pakistan.
"Whether it's the NDA (National Democratic Alliance) or the UPA (United Progressive Alliance) both are two sides of the same coin," NK Kalia said.
His outburst came a day after Swaraj denied any "flip-flop" in India's policy towards Pakistan and said no talks can be held with the country as long as Mumbai attack mastermind Zakiur Rehman Lakhvi was walking free.
Disappointed with the stand of the Narendra Modi government on dealing with Mumbai terror attackers and the Pakistan army, NK Kalia said India was apparently confused in its policy on the nuclear-armed neighbour.
"Is Pakistan a friend or an enemy? India is totally confused. This is my personal experience for the past 16 years when I lost my son for the country's sake."
Meanwhile, independent MP Rajeev Chandrasekhar (Rajya Sabha) requested the Centre to pursue the Captain Kalia case in the ICJ.
"This is a case where a crime has been committed against a brave soldier and his family has been struggling to make sure that justice is done. I have myself petitioned in the ICJ in December 2012, and that petition is pending because the then government (UPA-II) did not think it's appropriate to intervene."
To Chandrashekhar's query on whether the government proposed to take up Kalia's torture with the ICJ), junior foreign minister VK Singh, himself a retired General and army chief, had recently replied, "The attention of the international community has already been drawn to these heinous and barbaric acts of Pakistan army, including through a statement to the UN General Assembly on September 22, 1999, and to the Commission of Human Rights in April 2000."
(With agency inputs)