2024 INSC 674

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Reportable 2024 INSC 674 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 551 OF 2024

Ashok Kumar Sharma & Ors … Petitioners

Versus

Union of India … Respondent

JUDGMENT

1 The petition, invoking Article 32 of the Constitution, has been instituted by former civil

servants, scholars, activists and experts in fields such as International Relations,

Human Rights and Policy Analysis.

2 The petition seeks directions to the Union Government to cancel existing

licences/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 October 2023. The petitioners claim a violation of

India’s international law obligations and of Articles 14, 21 and 51(c) of the

Constitution.

Digitally signed by Supporting the submissions of the petitioners, Mr Prashant Bhushan, counsel has Gulshan Kumar Arora

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/genocide.

4 In other words, the submission is that the continuation of the export licences would

constitute action complicit against the Genocide Convention and other

international obligations which India has assumed.

5 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 relation 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, agreement or

convention with any other country or countries or any decision made at any

international conference, association or other body.

6 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, the 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 export of arms and military equipments to

Israel. We are affirmatively of the view that the answer to this question must be in

the negative for more than one reason.

7 First any grant of relief in the present proceedings is presaged 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 the jurisdiction of this Court. Hence, for

this Court to consider the grant of the reliefs as sought, it would inevitably become

necessary to enter a finding in regard to the allegations which have been 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.

8 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 equipments by Indian companies. Some

of these licenses may be governed by contracts with international entities, including

within the State of Israel. 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.

9 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) as well as under the provisions of the Customs Act, 1962.

Whether in a given case, any such 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.

10 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.

11 For the above reasons, we have 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.

12 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 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 this Court.

13 The Writ Petition shall accordingly stand dismissed for the above reasons.

14 Pending applications, if any, including the application for intervention/

impleadment stand disposed of.

…...…...….......………………....…CJI. [Dr Dhananjaya Y Chandrachud]

…...…...….......………………....…..J. [J B Pardiwala]

…...…...….......………………....…..J. [Manoj Misra]

New Delhi; September 09, 2024 GKA