It Is A Matter Of National Self-Interest As Evaluated By Govt: Apex Court While Dismissing Plea Seeking Suspension Of Military Exports To Israel
The Supreme Court today dismissed a Public Interest Litigation (PIL) filed by former bureaucrats, senior academics, and activists seeking directions from the Union of India to halt the export of arms and military equipment to Israel during its ongoing military operations in Gaza.
The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra noted that the basic issue that falls for consideration in the proceeding is as to whether the court, under the judicial fiat under Article 32, can issue a writ to the Union of India to cancel the licenses and halt the issuance of new licenses for the export of arms and military equipment to Israel.
"We are affirmatively of the view that the answer to this question would be negative, for more than one reason," the Court said.
At the outset, Advocate Prashant Bhushan, appearing for the petitioners, submitted, "It is an important petition, dealing with International Humanitarian Law."
The CJI said, "You are seeking a direction to the Union of India, to cancel existing licenses/permissions and halt the grant of new licences/permissions, to various companies in India, for exports of arms and other military equipment to Israel. Mr. Bhushan, how can the court adopt this kind of a jurisdiction. It is a matter of foreign policy or defence policy."
The Court stated that it cannot tell the government to cancel or halt the grant of licenses. "It is a matter of national policy," the CJI remarked.
Bhushan submitted that the International Court of Justice (ICJ), the Hague Court, and the UN Experts say that genocide is happening in Gaza.
The CJI said, "The conduct of foreign policies is entirely a matter....we can't say to the government that you are exporting, say, solar power or oil, to a particular nation. Stop that. We can't say that. Where do we get that jurisdiction?"
Bhushan contended, "If the arms are going to aid and assist the genocide (which has been held by the ICJ), then..."
"Any such direction will immediately impact upon India's conduct of foreign relations with the foreign state...It is a matter of National self-interest as evaluated by the government," the CJI remarked.
Bhushan then contended, "What if that national self-interest is against the law, against the Genocide Convention?"
The CJI said that the absolute power of the parliament to ratify a convention and converting it into law is the domain of the parliament; we cannot direct it.
Bhushan argued that the Genocide Convention has been ratified by India, therefore it can be read into municipal law. "ICJ is saying that export of arms by any country, to Israel at this point of time, when genocide is being committed by Israel in Gaza, would amount to a violation of the convention of genocide," he argued. Bhushan also argued that policy cannot be against the law.
"The question is whether an international convention ratified by India, can be read into our law, can be read as part of our municipal law or not." Bhushan submitted.
Justice Pardiwala said, "You have raised a very delicate issue, but the courts cannot interfere in this."
Solicitor General (SG) Tushar Mehta, appearing for the Union of India, submitted, "The most dangerous part is, whether to term, one particular action of a foreign country to be an act of aggression, genocide or act of defence, that's essentially a diplomatic policy of the government. Would the constitutional court take a call accepting that this is a genocidal attack and therefore, the treaty applies?"
Taking note of the submissions, the Court said, "The conduct of foreign affairs, the authority, and the jurisdictions are vested with the Union government under Article 162 of the Constitution. Apart from Article 162, the provisions of Article 253 of the Constitution stipulate that Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any other country/countries, or a decision made at any international conference, association, or other body."
The Bench stated that for this court to consider the grant of reliefs sought, it would inevitably become necessary to enter a finding of fact in regard to the fundamental allegations that have been levelled by the petitioners against the State of Israel.
"The grant of injunctive relief by this court would necessarily indicate a judicial direction for breach of International contract and agreements. The fallout of such breaches would affect the Indian companies," the Bench further said.
Additionally, the Court said that the government takes into account all relevant considerations, including the commitments at the international level.
Conclusively, the Court said, "For the above reasons, we have come to the conclusion that relief which has been sought in these proceedings is not amenable to the exercise of judicial remedies under Article 32 of the Constitution....The petition, accordingly, stands dismissed."
The petition filed through Advocate Prashant Bhushan argued that these exports violate India's obligations under international law, particularly the Genocide Convention, and infringe upon Articles 14 and 21 of the Indian Constitution, read with Article 51(c).
"...appropriate directions in the nature of a mandamus to the Respondent, Union of India, to cancel any existing licences/permissions and halt the grant of new licences/permissions, to various companies in India, for exports of arms and other military equipment to Israel during Israel’s war in Gaza, which is in violation India’s obligations under international law coupled with Articles 14 and 21 read with 51(c) of the Constitution of India. These companies include a public sector enterprise under the Ministry of Defence, M/s Munitions India Limited and other private companies such as M/s Premier Explosive and Adani Defence and Aeropace Ltd., and others," the PIL read.
The Petitioner has called for the cancellation of existing licenses and the suspension of the issuance of new licenses to various Indian companies engaged in the export of military hardware to Israel. Among the companies named in the petition are Munitions India Limited, a public sector enterprise under the Ministry of Defence, and private firms such as Premier Explosives Ltd. and Adani Defence and Aerospace Ltd.
The PIL highlighted the recent decision of the International Court of Justice (ICJ) on January 26, 2024, which ordered provisional measures against Israel for violations in Gaza under the Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ's ruling called for an immediate halt to military actions causing harm to the Palestinian people. Following this, United Nations experts warned that the continued transfer of weapons to Israel could constitute serious violations of human rights and international humanitarian law, potentially implicating states in genocide. The petition underscored that India is a signatory to various international treaties and conventions, including the Genocide Convention and the Geneva Conventions, which obligate the country to prevent genocide and refrain from supplying arms to states involved in war crimes. It is argued that exporting military equipment to Israel, which could be used in such crimes, directly contravenes these international obligations.
Earlier in July, a group of citizens wrote a letter to the Defence Ministry urging the Indian government to cancel all existing licenses and halt future approvals for the export of military arms and equipment to Israel. This letter has been written in the light of the ongoing conflict in Gaza and recent rulings by the International Court of Justice (ICJ), which declared Israel to be in violation of its obligations under the Genocide Convention and recognized its illegal occupation of Palestinian territories.
"We are writing to you as concerned citizens, alarmed at the continued grant of export licences and permissions to various Indian companies, for the supply of military arms and munitions to Israel, since the war on Gaza began. The International Court of Justice (ICJ) has clearly ruled that Israel is in violation of obligations under the Genocide Convention and further that Israel is in illegal occupation of the occupied Palestinian territory. In light of these rulings, any supply of military material to Israel would amount to a violation of India’s obligations under international humanitarian law and the mandate of Article 21 read with Article 51(c) of the Constitution of India. We urge you, therefore, to cancel the concerned export licences and halt the granting of any new licences to companies supplying military equipment to Israel," the letter read.
Cause Title: Ashok Kumar Sharma & Ors. v. Union of India [W.P.(C) No. 000551/2024]