Supreme Court dismisses plea to halt military aid to Israel
The Supreme Court said the decision whether any such step is warranted is to be taken by the government considering economic and geopolitical considerations.
The Supreme Court on Monday dismissed a petition seeking immediate suspension of military aid to Israel for its war in Gaza observing that imposing any such prohibition cannot be taken by courts as the decision whether any such step is warranted is to be taken by the government considering economic and geopolitical considerations.
Deciding a public interest litigation filed by a group of retired public servants, scholars and public spirited citizens demanding an immediate halt of supply of weapons by Indian companies to Israel, a bench headed by chief justice of India (CJI) Dhananjaya Y Chandrachud said that such a petition cannot be maintainable as Israel being a sovereign nation cannot be amenable to the jurisdiction of Indian courts.
The court said that the supply of arms by Indian companies to Israel would be governed by international contracts that cannot be interfered by a court’s decision as Indian companies have firm commitments under contractual obligations.
The petition was argued by advocate Prashant Bhushan who said that the Indian government, having ratified the Genocide Convention, is bound by the international agreement which does not permit supply of arms to a country engaging in genocide and war crimes. In the present case, he said Israel had indulged in killing innocents by bombing schools and hospitals and supply of arms by India at a time when the war at Gaza is going on will violate the Genocide Convention.
The bench, also comprising justices JB Pardiwala and Manoj Misra said, “You are assuming it may be used for genocide. You have raised a delicate issue, but courts should not interfere in this matter. Government can evaluate what is the impact on Indian companies as it is conscious of the situation being a responsible power.”
The court said that a similar situation can arise in the ongoing conflict between Russia and Ukraine with a plea not to import oil from Russia. “India sources oil from Russia. Can the Supreme Court say you should stop importing oil from Russia. These decisions are a matter of conduct of foreign policy and depends on needs of the nation.”
The court cited other situations that may arise relating to nature of extent of economic relations with Bangladesh or Maldives which had recently ordered Indian defence personnel to leave their country. “The danger of court taking over the function of the government will lead to granting injunctory relief without fully appreciating the breach of international obligations as the fallout of the breach cannot be accessed by courts.”
It noted that it is always open for the government to impose restrictions under the Foreign Trade Act, the Customs Act as the restraint on courts to interfere in matters of foreign affairs is based on sound rationale.
Solicitor general Tushar Mehta appearing for Centre informed the court that the petitioners have chosen to use words such as aggression and genocide against the actions of a sovereign country that may not be acceptable in the diplomatic discourse. He further said that the court, by issuing notice on such a petition, would be endorsing the allegations made in the plea.
The court noted that Article 253 of the Constitution of India gives Parliament the right to introduce any law for implementing a foreign treaty. “Absolute power is given to Parliament to implement the treaty. But to convert it into a municipal law has been left to Parliament.”
The petition was filed by 11 public spirited persons led by former diplomat Ashok Kumar Sharma along with economist Jean Dreze, former bureaucrat Harsh Mander and social activist Nikhil Dey among others. They argued that Article 21 of the Constitution of India is available even to non-citizens and the issue at hand calls for judicial review as India’s action could directly aid and abet the death of Palestinians in the ongoing war with Israel.
The petition said, “The actions of the state in granting licenses to companies for military exports to Israel, in violation of India’s binding obligations under international law, is arbitrary, unreasonable and unfair, being violative of Article 14 of the Constitution and must be struck down.”
The petition named a public sector enterprise M/s Munitions India Limited under the Ministry of Defence to be one of the companies supplying arms to Israel along with other private companies, including M/s Premier Explosive and Adani Defence and Aerospace Ltd.
They urged the court to direct Centre to cancel any existing license/permission and halt the grant of new licenses/permissions to companies in India for exporting arms and other military equipment to Israel for its war in Gaza.
The International Court of Justice (ICJ) in a recent decision in January 2024 ordered provisional measures against Israel for violating obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip. These provisional measures include immediate military halt to all killings and destruction perpetrated on the Palestinian people.