On 9th September, the Supreme Court denied a Public Interest Litigation (PIL) asking for the suspension of India’s military shipments to Israel in light of the continuing conflict with Gaza. The court ruled that as the issue fell entirely under the purview of foreign policy, it was beyond its authority to order the Government of India to stop exporting resources to any nation. The bench included Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra.
A writ petition under Article 32 of the Constitution asking 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” was heard by the apex court. The petitioners argued that since India was exporting weapons to Israel, it was breaking the Convention on the Prevention and Punishment of the Crime of Genocide because Israel was committing genocide in Gaza.
#SupremeCourt hears the plea against Govt of India's decision to supply arms to Israel [#PalestineGenocide]
— Bar and Bench (@barandbench) September 9, 2024
Adv Prashant bhushan: Export is to a country which is committing genocide. It is held by ICJ and even by Hague convention
CJI DY Chandrachud: But foreign policy is the… pic.twitter.com/mxmQdUD59y
The bench pronounced that Article 162 of the Constitution grants the Union Government the power and jurisdiction to deal with international affairs. The court additionally noted that it would need to determine the accusations made against Israel which is an independent sovereign state outside the ambit of Indian courts, before it could award the requested relief.
The court further pointed out that granting the relief would be equivalent to issuing a court order for the Indian corporations’ potential breach of the contracts they might have had with foreign businesses and could face legal action for the same. The government alone has the authority to decide whether to forbid international trade with any nation under the relevant legislation. The court is not authorized to assume such responsibilities. The bench explained that it had not made any observations regarding the merits of India’s foreign policy or the behaviour of any other independent sovereign country when it dismissed the case.
“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,” the CJI remarked.
Advocate Prashant Bhushan, who was representing the petitioners contended that the court might intervene if the national policy violated both the law and the Constitution. He claimed that India cannot permit exports that are used for genocide and insisted that Israel is committing genocide in Gaza, citing rulings from the International Court of Justice. He added that it would be similar to encouraging genocide and breaking the Genocide Convention, which India has ratified. He further alleged that since the Genocide Convention is incorporated into our local laws, the court must halt any policies that violate the international agreement.
“What is the fall out on international relations is something we are not aware of,” the bench stressed. In a fictitious instance, CJI questioned whether the court could order the government to cease importing oil from Russia while the conflict between Russia and Ukraine rages on. “See Bangladesh too, there are disturbances there. What should be the degree of economic engagement with that country is a matter of foreign policy. In Maldives also we had some issues. Can we then ask the government to stop investments there,” he asked.
According to Prashant Bhushan, Israel’s situation is unique since numerous international organizations have concluded that they are perpetrating genocide. “Here is a very special situation, a very unusual situation. Spain stopped a ship which was carrying arms from India to Israel, they said they could not allow this ship to berth,” he stated. Several Indian firms may have had contracts with Israeli entities, per Justice Pardiwala, and if the Court were to grant the plea for instructions, it might result in legal action being taken against the Indian companies for allegedly breaching their commitments. However, Prashant Bhushan asserted that Israel was “committing genocide- no doubt about it.”
“That is a very generic statement. Let’s not unnecessarily get into all this. It will create problems for our court,” retaliated Justice Pardiwala. Prashant Bhushan mentioned that the United Kingdom government discontinued exports to Israel in response to a petition signed by more than 600 jurists. However, the CJI underlined that the UK Government, not the UK Supreme Court, carried out the decision.
What is the petition?
The ongoing export of weapons and other military hardware to Israel during the country’s siege of Gaza, according to the plea filed violates Articles 14 and 21 read with Article 51(c) of the Indian Constitution, which aims to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” According to the petition, licenses for the shipment of weapons and ammunition to Israel have been given to at least three Indian businesses that deal with the production and export of such goods, even during the current Gaza conflict. These licenses, which were secured from the Department of Defence Production (DDP) or the Directorate General of Foreign Trade (DGFT), permit the export of weapons and munitions for both dual-use and particularly military reasons. The plea was filed by the members of the ‘liberal ecosystem’, including a controversial former bureaucrat and Delhi riots accused Harsh Mander.
Ever since reports of the Israeli military importing arms from India surfaced, the leftwing liberal lobby has had ants in their pants, with periodic calls to the Centre to ban sales of armaments that are aiding Israel’s war against Hamas. Israel launched a war against Hamas, a terror group that controlled the Gaza Strip, after being inflamed by the October 7 terror attacks, when hundreds of Hamas terrorists from the Palestinian enclave intruded into the border villages of Israel and inflicted unspeakable atrocities.
Israel launched an operation to flush out Hamas terrorists and rescue over 200 Israelis held captive by the terror outfit. But its military operation to protect its sovereignty and bring back the abductees has raised the hackles of the Islamists the world over, including in India, who are in a stew as Hamas loses ground in Gaza while conveniently ignoring the plight of the minority Hindus facing an existential threat by bloodthirsty Islamists running amok closer home, in Bangladesh.
