The
petition, invoking Article 32 of the Constitution, has been filed by former civil
servants, scholars, activists and experts in fields such as International
Relations, Human Rights and Policy Analysis. The petition seeks
directions to the Union Government to cancel existing licences and permissions
and to halt the grant of new licences to companies in India for the export of
arms and military equipment to Israel during the ongoing conflict in Gaza.
These companies, as the petitioners describe, include a Public Sector
Enterprise in the Ministry of Defence and private companies
which have allegedly been granted licenses after October100 2023. The petitioners claim a
violation of India's international law obligations and of Articles 14, 21120 and 51(c) of the Constitution.
Supporting
the submissions of the petitioners, the learned counsel has relied on
the rulings of the International Court of Justice allegedly into the
conduct of Israel in Palestinian territories. The submission is
that India is bound by international treaties which disallow the supply of
military weapons to states who have engaged in war crimes and genocide. In
other words, the submission is that the continuation of the export
licences would constitute action complicit200 against the Genocide Convention and
other international obligations which India has assumed.
The
fundamental objection to the maintainability of a petition of the nature
that is before the Court lies in the fact that the authority and jurisdiction
in relation240 to the conduct
of foreign affairs is vested with the Union Government under Article 73 of the
Constitution. Apart from Article 73, 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,
agreement300 or convention
with any other country or countries or any decision made at any international
conference, association or other body.
There
is a presumption that international law is a part and parcel of
the law of the nation unless the application of a principle of international
law is excluded expressly or by necessary implication by the competent
legislature. However, the360
basic issue which falls for consideration in the present proceedings is
whether the Court under Article 32 can issue a writ to the Union Government to
cancel existing licences and halt the issuance of new licences for the export400 of arms and military equipment to
Israel. We are positively of the view that the answer to this question must be
in the negative for more than one reason.
First,
any grant of relief in the present proceedings is suggested on the
submission of the petitioners in regard to the conduct of an independent
sovereign nation namely, Israel in the conduct of its operations in Gaza. The
sovereign nation of Israel is not and cannot be made amenable to the480 jurisdiction of this Court.
Hence, for this Court to consider the grant of the reliefs as
sought, it would inevitably500
become necessary to enter a finding in regard to the allegations which
have been levelled by the petitioners against the State of Israel. Without
jurisdiction over a sovereign State, it would be unlawful for
this Court to entertain the grant of reliefs of this nature.
The
second aspect of the matter which requires to be noticed is that the
petition seeks a cancellation of the existing licences and prohibition
on the issuance of new licences for the export of arms and military equipment
by Indian companies. Some of these licenses may be governed by contracts
with international entities, including within600 the State of Israel. The grant of injunctive
relief by this Court would necessarily implicate a judicial
direction for breach of international agreements and contracts. The fallout
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.
Third,
the statutory provisions of our law confer sufficient power on the Union
Government if it decides to act in such cases. For instance,
prohibitions can be imposed by the Union of India under the Foreign
Trade (Regulation and Development) Act 700
as well as under the provisions of the Customs Act, 1962. Whether
in a given case, any such720
action is warranted is a matter which has to be decided by the Union
Government bearing in mind economic, geo-political and other interests of
the nation in the conduct of international relations. In taking an
appropriate decision, the Government bears 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 comprehensive800 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.
For
the above reasons, we have840
come to the conclusion that the reliefs which have been sought in
these proceedings are not amenable to the exercise of judicial remedies
under Article 32 of the Constitution. We clarify that the observations which
have been made in the earlier part of this judgment are not intended to
reflect any opinion by this Court either in the conduct900 of foreign policy by the
Government of India, or for that matter, by any sovereign nation which
is not subject to the jurisdiction of this Court. 926
