Supreme Court Dismisses Plea To Stop India's Military Exports To Israel Amidst Gaza Conflict

The Supreme Court on Monday (September 9) dismissed a petition seeking the suspension of military exports from India to Israel amidst the ongoing war against Gaza.

The Court said that it was beyond its jurisdiction to direct the Government of India to not export materials to any country, as it was a matter which was completely within the domain of foreign policy.

The bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra was hearing a writ petition under Article 32  of the Constitution seeking 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".  The petitioners contended that Israel was committing genocide in Gaza and hence the Indian arms exports would amount to a violation of the Convention on the Prevention and Punishment of the Crime of Genocide.

Foreign trade a matter under the sole domain of the executive

In its order, the bench observed that for the engagement in foreign affairs, the authority and jurisdiction are vested with the Union Government under Article 73 of the Constitution.  

The Court further observed that for it to grant the reliefs sought by the petitioners, it will have to enter into findings on the allegations raised against Israel, an independent sovereign nation which is not subject to the jurisdiction of the Indian Courts.

"Absent jurisdiction over a sovereign State, It would be impermissible for this Court to entertain the grant of reliefs of this nature," the Court observed.

The Court also observed that the grant of the reliefs would amount to a judicial injunction for breach of contracts which the Indian companies may have entered into with international entities. 

"The grant of injunctive relief by this Court would necessarily implicate a judicial direction for breach of international contracts and agreements. The fall out of such breaches cannot be appropriately assessed by this Court and would lay open Indian companies which have firm commitments to proceedings for damages which may affect their own financial viability."

Whether to prohibit foreign trade with any country is a matter to be decided solely by the Government as per the applicable law and the Court cannot take over such functions.

"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 self-imposed restraint on Courts entering into areas of foreign policy is, thus, grounded in sound rationale which has been applied across time."

While dismissing the petition, the Court clarified that its observations in the judgment are not intended to reflect any opinion by it on the merits of India's foreign policy or the conduct of any independent sovereign nation.

Court room exchange

As the matter was taken, CJI observed: "How can the Court adopt this kind of jurisdiction? We can't tell the Government that you shall not export to a particular country or cancel the licenses of companies exporting arms to that country. It is a matter of foreign policy which is to be handled by the Government.

"How can the Court tell the Government that there should not be exports of arms to a country? Where does the Court get that sort of power? National self-interest has to be evaluated by the government," CJI said.

Advocate Prashant Bhushan, for the petitioners, submitted that if the national policy is against the Constitution and the law, then the Court can interfere. Referring to the judgments of the International Court of Justice, Bhushan said that Israel is committing genocide in Gaza and India cannot allow exports which are used for genocide. That would amount to abetting genocide and the violation of the Genocide Convention, which has been ratified by India.

Bhushan argued that the Genocide Convention can be read into our municipal law and therefore, any policy, which is contravening the international treaty, has to be stopped by the Court.

"What is the fall out on international relations is something we are not aware of, " CJI said. Taking a hypothetical case, CJI asked if the Court can direct the Government to stop the import of oil from Russia amidst the ongoing war between Russia and Ukraine. "See Bangaldesh too, there are disturbances there. What should be the degree of economic engagement with that country, it is a matter of foreign policy. In Maldives also we had some issues. Can we then ask the Government to ask to stop investments there?"

Bhushan submitted that the case of Israel is different as many international bodies have found that they are committing genocide. "Here is a very special situation, very unusual situation. Spain stopped a ship which was carrying arms from India to Israel, they said they cannot allow this ship to berth...," he said.

Justice Pardiwala said that several Indian companies might have had contracts with Israeli entities and if the Court were to pass the directions as sought by the petitioners, it could lead to legal proceedings against the Indian companies for breach of contract. When Bhushan reiterated that Israel was "committing genocide- no doubt about it!", Justice Pardiwala said, "That is a very generic statement. Let's not unnecessary get into all this... it will create problems for our court."

Bhushan said that the United Kingdom Government has suspended the exports to Israel after a letter was written by over 600 jurists. CJI said that it was done by the UK Government and not the UK Supreme Court.

The plea filed by former bureaucrats, activists and senior academics states that the ongoing export of arms and other military equipment to Israel during Israel's siege in Gaza violates Articles 14 and 21 read with Article 51(c) (foster respect for international law and treaty obligations in the dealings of organised peoples with one another of the Indian Constitution). 

The petition states that at least 3 companies in India dealing with the manufacture and export of arms and munitions have been granted licenses for the export of arms and munitions to Israel, even during this period of the ongoing war in Gaza. These licences have been obtained from either the Directorate General of Foreign Trade (DGFT) or the Department of Defence Production (DDP) authorize export of arms and munitions for dual use and specifically for military purposes. 

The main contentions of the petitioners are :

(1) India is obligated under the 1948 Genocide Convention (which India has signed and ratified) to take all measures within its power to prevent genocide. Article III of the Genocide Convention makes States complicity in Genocide a punishable offence. The obligation not to supply weapons to States possibly guilty of war crimes is an obligation directly based on common Article 1 of the Geneva Conventions, which India has also signed and ratified.  

(2) Reliance is placed on the decision by International Court of Justice (ICJ) on January 26, 2024, in which the ICJ ordered provisional measures against Israel for violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide The provisional measures include an immediate military halt to all killings and destruction that is being perpetrated by Israel on the Palestinian people. 

It adds that a statement released by UNO Experts, warns against transfer of weapons and military ammunition to Israel which may constitute serious violation of human rights and international humanitarian laws and risk state complicity in international crimes, possibly including genocide. 

(3) Article 21 ensures right to life to non-citizens and state action of exporting arms and ammunition could directly aid and abet the death of Palestinians during the ongoing war with Israel, and this comes under the purview of judicial review of the Supreme Court. India has also voted in favour of a UN resolution on an immediate ceasefire in Gaza in December 2023. But India's abstention from voting on a resolution calling for a ceasefire and an arms embargo on Israel in April 2024, raises serious questions regarding India's complicity in aiding the war despite the ICJ ruling on genocide.

Details of petitioners

1. Mr. Ashok Kumar Sharma, is a retired civil servant (diplomat) who joined Indian Foreign Service in 1981 and retired in 2017.

2. Ms. Meena Gupta is a retired civil servant, having worked in the Indian Administrative Service, from 1971 to 2008.

3. Mr. Deb Mukharji, served in the Indian Foreign Service from 1964 to 2001.

4. Mr. Achin Vanaik is a retired Professor of "International Relations and Global Politics" and Former Dean of the Faculty of Social Sciences, University of Delhi.

5. Mr. Jean Drèze, development economist, is currently Visiting Professor at Ranchi University.

6. Mr. Thodur Madabusi Krishna, is one of the pre-eminent vocalists in the rigorous Karnatik tradition of India's classical music.

7. Dr. Harsh Mander, human rights and peace worker, writer, columnist, researcher and teacher is Chairperson, Centre for Equity Studies, devoted to the analysis and development of public policy and law for justice and rights of disadvantaged groups.

8. Mr. Nikhil Dey, is one of the founding members of the Mazdoor Kisan Shakti Sangathan (MKSS).

9. Mr. Vijayan Malloothra Joseph is a Delhi-based research scholar and policy analyst.

10. Mr. Feroze Mithiborwala, is an Indian secular peace activist. He specialises, writes and lectures on the West Asian Region as well as International Politics and Strategic Affairs.

11. , Ms. Prakriti, is a researcher and activist based in Delhi.

Case Details: Ashok Kumar Sharma & Ors v. Union of India, WP (C) No 551 of 2024  

Citation : 2024 LiveLaw (SC) 678

Click Here To Read/Download Judgment