Supreme Court: While considering the instant petition seeking directions for the Union Government to cancel existing licenses/permissions and to stop the grant of new licenses to Indian companies, for the export of arms and military equipments to Israel during the ongoing conflict in Gaza; the 3-Judge Bench of Dr D.Y Chandrachud, CJ, J.B Pardiwala and Manoj Misra, JJ., refused to grant any relief, stating that Israel is not and cannot be made amenable to the jurisdiction of the Supreme Court. The Court further stated that some of the licenses/permissions may be governed by contracts with international entities, including within the State of Israel and a grant of injunctive relief by the Court would necessarily implicate a judicial direction for breach of international contracts and agreements.
Furthermore, the Court pointed out that statutory provisions of Indian law confer sufficient power on the Union Government if it decides to act in such cases. In taking an appropriate decision, the Government takes into account all relevant considerations including the commitments of the nation 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”.
Contentions: The petitioner knocked doors of the Supreme Court seeking to cancel permits given to Public Sector Enterprises in the Ministry of Defence and private companies which have allegedly been granted licenses after October 2023 claiming a violation of India’s international law obligations and of Articles 14, 21 and 51(c) of the Constitution.
Counsel for the petitioners relied on the rulings of International Court of Justice allegedly into the conduct of Israel in Palestinian territories. It was submitted that India is bound by international treaties which disallow the supply of military weapons to states who have engaged in war crimes/genocide and that the continuation of the export licenses would constitute action contrary to the Genocide Convention and other international obligations which India has assumed.
Court’s Assessment:
The Court had to consider that whether under Article 32 of the Constitution, it can issue a writ to the Union Government to cancel existing licenses and halt the issuance of new licenses for the export of arms and military equipments to Israel?
Perusing the matter and raising objection on the maintainability of the instant petition, the Court pointed out that the authority and jurisdiction in relation to the conduct of foreign affairs is vested with the Union Government under Article 73 of the Constitution. Furthermore, Article 253 of the Constitution states that Parliament can 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.
The Court pointed out that Israel cannot be made amenable to the jurisdiction of the Supreme Court of India and to consider the grant of reliefs sought in the instant petition, it would inevitably become necessary to enter a finding regarding the allegations 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”.
Vis-a-vis cancellation of existing permits, the Court pointed out that a grant of relief would mean judicial direction to breach international contracts and agreements. It was stated that fall out of such breaches cannot be appropriately assessed by the Court and would affect the financial viability of Indian companies which have firm commitments, as they would be open to proceedings for damages.
The Court further stated that the self-imposed restraint on Courts entering into areas of foreign policy is grounded in sound rationale which has been applied across time.
Therefore, the Court deemed it fit to dismiss the petition. The Court also clarified that observations made while deliberating over the matter is not intended to reflect any opinion by the Court either in the conduct of foreign policy by the Government of India, or for that matter, by any sovereign nation which is not subject to the jurisdiction of the Supreme Court of India.
CASE DETAILS
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Citation: Appellants : Respondents : |
Advocates who appeared in this case For Petitioner(s): For Respondent(s): |
CORAM :
Dr D.Y Chandrachud, CJ
J.B Pardiwala, J.
Manoj Misra, J.
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