Centre has clarified its stand that it will not treat Indian Army Capt. Saurabh Kalia's torture by the Pakistan Army in 1999 during the Kargil conflict as a war crime, its counsel said on Monday.
India has filed its response in the case in the Supreme Court, saying it has no intention of taking up the issue under the Geneva Convention.
"The government in its reply says it's bound by some agreement (Simla Agreement of 1972), so it can't treat Saurabh Kalia's case as a war crime," martyr's family counsel Arvind Sharma, who is based in Delhi, said over telephone.
He said the case has been listed for hearing Tuesday before an apex court bench headed by Justice R.M. Lodha. The Supreme Court heard the petition of Capt. Saurabh's father N.K. Kalia Dec 14, 2012.
The apex court bench of Justice R.M. Lodha and Justice Anil R. Dave issued notice to the central government on a plea for direction that his torture by the Pakistan Army be referred to the International Court of Justice (ICJ).
Counsel Sharma told the court that the victim's family approached the defence ministry seeking that the matter be referred to the ICJ as Kalia's treatment, after being captured, violated the international convention on the treatment of prisoners of war.
Defence Minister A.K. Antony in a reply to Rajya Sabha member Rajeev Chandrasekhar's letter said in October 2013 "India is committed to settle differences with Pakistan by peaceful means through bilateral negotiations," NK Kalia said.
Kalia, 63, retired as a senior scientist from the Council of Scientific and Industrial Research.
The letter, forwarded by Chandrasekhar to Kalia, says: "The matter (killing of Capt. Saurabh) has been examined in consultation with the Ministry of External Affairs (MEA)."
"It's informed by the MEA that they have raised the issue appropriately in the international fora under the Simla Agreement with Pakistan. India is committed to settle differences with Pakistan by peaceful means through bilateral negotiations. Therefore, the matter has not been dealt with under the Geneva Convention," said Antony's letter dated Oct 3, 2013.
Chandrasekhar, who wrote a letter to the minister of external affairs, with a copy to the prime minister and the defence minister, Dec 6, 2011, asked the MEA to "take up the matter with the United Nations Human Rights Council to declare this as a war crime and move the International Court of Justice".
Capt. Saurabh, of the 4 Jat Regiment, was the first army officer to report the incursion by the Pakistan Army on the Indian soil in Kargil region.
He and five soldiers - Arjun Ram, Bhanwar Lal Bagaria, Bhika Ram, Moola Ram and Naresh Singh - were on patrol of the Bajrang Post in the Kaksar sector of Jammu and Kashmir when they were taken captive by the Pakistani Army troops May 15, 1999.
They were tortured for weeks before being killed. Their mutilated bodies were handed over to the Indian authorities June 9.