Charu Sudan Kasturi, TT, New Delhi, April 11: Pakistan had offered India conditional consular access to former naval officer and alleged spy Kulbhushan Jadhav 20 days before he was sentenced to death, seeking in exchange access to details of senior Indian government and intelligence officials it accused of aiding terrorism.
But India cited international law to insist that its diplomats be allowed to meet and speak with Jadhav first, a request Pakistan did not respond to till three hours after the sentence was declared yesterday afternoon. Islamabad then iterated its conditional offer.
Foreign secretary S. Jaishankar had yesterday issued a demarche - a formal written protest - to Pakistani high commissioner Abdul Basit pointing out that Islamabad had not allowed New Delhi access to Jadhav despite 13 requests.
Foreign minister Sushma Swaraj and home minister Rajnath Singh today reaffirmed Jaishankar's warning to Pakistan that India would view the implementation of the sentence as "premeditated murder".
Jadhav can challenge the conviction and sentencing in a Pakistani military court of appeals, and then approach the Pakistani army chief with a mercy petition. If both avenues fail, he can move a mercy petition before Pakistan's President.
But details of the correspondence between the two countries over Jadhav raise the questions how the military court inferred Jadhav's guilt and whether India could have gained consular access earlier, officials from both governments told The Telegraph.
That Pakistan sought help in establishing evidence even after Jadhav's sentencing shows that the grounds for the conviction were weak, Indian officials said.
"That tells us a lot about the farcical nature of the alleged proceedings that have led to an indefensible verdict against an innocent, kidnapped Indian," Sushma told both Houses of Parliament.
But India's inability to successfully use Pakistan's conditional offer to speak with Jadhav before the sentencing, while failing to reject outright the charges Islamabad had levelled against senior Indian intelligence officers, may indicate a failure too, two officials here said.
India, they said, may have fallen between two stools.
A country can legally deny diplomats of a foreign nation access to their detained citizens only if the detainees specifically refuse help from their mission. Pakistan has not so far claimed that Jadhav has refused the Indian high commission's help.
On March 21 this year, Pakistan - which had till then not responded to the 11 previous requests for consular access -offered a tantalising yet difficult-to-accept proposition.
It named three Indian officials who it claimed were involved with Jadhav in facilitating "terrorist" activities in Balochistan and Sindh, and sought access to details of these officials for its investigation in return for access to Jadhav. Caught in a bind, the foreign office tried walking a tightrope.
Today, Sushma called the Pakistani charges against the other Indian officials "ridiculous". But on March 21, the consular wing of the Indian mission in Islamabad did not expressly rule out sharing the information Pakistan wanted. Instead, it argued in a response the same day that access to Jadhav was a "pre-requisite" for any help from India.
Pakistan did not respond, not even after India wrote again on March 31, only iterating its condition for access to Jadhav yesterday, after the sentence had been announced.
Some within India's diplomatic establishment are worried that Pakistan might now point to New Delhi's March 21 response, which did not reject the possibility of sharing details about the senior officials accused by Islamabad, to suggest tacit acceptance of its allegations.
That balancing act was aimed at trying to negotiate with Pakistan for access to Jadhav, officials here said.
Three weeks later, India faces the same condition Pakistan offered on March 21, except that Jadhav now stares at a death sentence and New Delhi may have to cite failed tactics to explain why it did not more strongly reject Islamabad's March 21 allegations.