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 executiveIn 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 exchangeAs 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...

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

Anmol Kaur Bawa

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