The Supreme Court on Monday rejected a plea to stop military exports to Israel amid the conflict in Gaza, saying it is for the Government and not the court to decide matters of foreign policy. A three-judge bench led by Chief Justice of India D Y Chandrachud said the “fundamental objection to the maintainability of” the petition “is that in relation to the conduct of foreign affairs, jurisdiction is vested with the Union government under Article 162 of the Constitution”.
The bench also comprising Justices J B Pardiwala and Manoj Misra said, “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 or countries or any decision made at any international conference, association or other body.”
“Now it is well settled that there’s a presumption that international law is a part and parcel of the law of the nation unless the application of an international principle of law is expressly or by necessary implication excluded by the competent legislature,” it added. “However, the basic issue which falls for consideration in the present proceedings is as to whether the court, by judicial fiat under Article 32, can issue a writ to the Union of India to cancel existing licenses and halt the issuance of new licenses for the exports of arms and military equipment to Israel. We are affirmatively of the view that the answer to this question must be in the negative for more than one reason,” the court further said.
Giving reasons, the court said, “First, the grant of relief in the present proceedings is presaged on the submission of the petitioners in regard to the conduct of an independent sovereign nation, namely Israel, in the conduct of its operations, in Gaza. The sovereign nation of Israel is not and cannot be made amenable to the jurisdiction of this court. Hence, for this court to consider the grant of the reliefs, it would inevitably become necessary to enter a finding of fact in regard to the fundamental allegations which have been leveled by the petitioners against the state of Israel. Absent jurisdiction over a sovereign state, it would be impermissible for this court to entertain the grant of reliefs of this nature.
“The second aspect of the matter, which equally requires to be noticed, is that the petition seeks a cancellation of existing licenses and the issuance of new licenses for the export of arms and military equipment by Indian companies. Assuming that some of these licenses are now governed by contracts with international entities, including within the state of Israel, the grant of injunctive relief by this court would necessarily implicate a judicial direction for breach of international contracts and agreements. The fallout of such breaches cannot be appropriately assessed by this court and would lay open Indian companies which have firm commitments into proceedings which may affect their own financial viability.”
The court further said that “the statutory provisions in our law confer sufficient power in the Union government to act in such cases. For instance, prohibitions can be imposed by the Union government under the Foreign Trade (Regulation and Development) Act as well as under the provisions of the Customs Act 1962”.The court said that “whether in a given case, any such action is warranted is a matter which has to be decided by the Union government, bearing in mind the overall economic, geopolitical, and other interests. In taking an appropriate decision, the government bears into account all relevant considerations including, the commitments at the international level. The danger in the court taking over this function is precisely that it would be led into issuing injunctive reliefs without a full and comprehensive analysis or backdrop of the likely consequences of any such action”.
The court said “the self-imposed restraints on courts in entering into areas of foreign policy is thus grounded in sound rationale which has been applied across time. For the above reasons, we have come to the conclusion that the relief which have been sought in these proceedings are not amenable to the exercise of judicial remedies and Article 32 of the Constitution.” The bench clarified that “the observations which have been made in the earlier part of this order are not intended to reflect any opinion by this court either in the conduct of foreign policy by the Indian government or for that matter by any sovereign foreign nation, which is not subject to the jurisdiction of this court”.
The plea, filed by some former bureaucrats, academics and activists, alleged that Israel is carrying out genocide in Gaza and that exporting arms to it was in violation of obligations under international law and Articles 14, 21 and 51 (c) of the Constitution.