Supreme Court Dismisses Plea Seeking to Cancel Export of Arms and Other Military Equipment to Israel, says, “It is a matter of foreign policy”

Today (September 09, 2024), the Supreme Court (SC) of India was hearing a writ petition, by former bureaucrats, activists, and senior academics, under Article 32 of the Constitution of India seeking to “cancel any existing licences and halt the grant of new licences/permissions, to various companies in India, for export of arms and other military equipment to Israel, during Israel’s war in Gaza.” The three-judge bench of the SC constituting Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra dismissed the petition. The bench said it is beyond its jurisdiction to direct the Indian Government to not export materials to any country, as the matter was completely within the domain of foreign policy. The CJI said, “You are seeking a direction to the Union of India, to cancel existing licenses/permissions and halt the grant of new licences/permissions, to various companies in India, for exports of arms and other military equipment to Israel. Mr. Bhushan, how can the court adopt this kind of a jurisdiction. It is a matter of foreign policy or defence policy.” The SC also said that whether to prohibit foreign trade with any country or not is a matter to be decided by the Government according to the applicable law and the court cannot take over the same. 

During the proceedings, the 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.” Advocate Prashant Bhushan who appeared for the petitioners submitted, “If the arms are going to aid and assist the genocide (which has been held by the ICJ), then..." CJI remarked, “Any such direction will immediately impact upon India's conduct of foreign relations with the foreign state...It is a matter of National self-interest as evaluated by the government.” Advocate Bhushan further argued that “International Court of Justice is saying that export of arms by any country, to Israel at this point of time, when genocide is being committed by Israel in Gaza, would amount to a violation of the convention of genocide.” He added, “The question is whether an international convention ratified by India, can be read into our law, can be read as part of our municipal law or not.

Solicitor General Tushar Mehta who appeared for the Union of India contended, “The most dangerous part is, whether to term, one particular action of a foreign country to be an act of aggression, genocide or act of defence, that's essentially a diplomatic policy of the government. Would the constitutional court take a call accepting that this is a genocidal attack and therefore, the treaty applies?” After hearing the matter, the bench said, “The conduct of foreign affairs, the authority, and the jurisdictions are vested with the Union government under Article 162 of the Constitution. 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/countries, or a decision made at any international conference, association, or other body.” It added, “The grant of injunctive relief by this court would necessarily indicate a judicial direction for breach of International contract and agreements. The fallout of such breaches would affect the Indian companies.”

Lastly, the SC bench ordered, “We have come to the conclusion that relief which has been sought in these proceedings is not amenable to the exercise of judicial remedies under Article 32 of the Constitution...The petition, accordingly, stands dismissed.” Earlier on September 04, 2024, the petition was moved to the Supreme Court, filed through Advocate Prashant Bhushan.