The Supreme Court on Monday dismissed a petition seeking directions from the Central government to halt the export of arms and military equipment to Israel during its ongoing military operations in Gaza.
The Bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra observed that it was beyond the Court’s jurisdiction to direct the Government of India not to export materials to any country, the matter fell completely within the domain of foreign policy.
It said for the engagement in foreign affairs, the authority and jurisdiction were vested with the Union Government under Article 162 of the Constitution.
To grant the reliefs sought by the petitioners, the Court would have to enter into findings on the allegations raised against Israel, which was an independent sovereign nation and not subject to the jurisdiction of the Indian Courts, noted the top court of the country.
The Bench further observed that the grant of the reliefs would amount to a judicial injunction for breach of contracts, which the Indian companies may have entered into with international entities.
Whether to prohibit foreign trade with any country was a matter to be decided solely by the Government as per the applicable law and the Court could not take over such functions.
While dismissing the petition, the Court clarified that it has not observed anything on the merits of India’s foreign policy or the conduct of any independent sovereign nation.
Foreign trade was a matter under the sole domain of the executive, it added.
Filed under Article 32 of the Constitution by former bureaucrats, senior academics and activists, the writ petition sought appropriate directions in the nature of a mandamus to the Respondent (Union of India), to cancel any existing licences or permissions and halt the grant of new licences or permissions granted to various companies in India, for export of arms and other military equipment to Israel during its ongoing war with Gaza.
The writ petition contended that exporting arms and military equipment to Israel violated India’s obligations under international law coupled with Articles 14 and 21 read with 51(c) of the Constitution of India.
The petitioners sought the cancellation of existing licenses and suspension of the issuance of new licenses to various Indian companies engaged in the export of military hardware to Israel.
The PIL highlighted the recent decision of the International Court of Justice (ICJ) on January 26, 2024, which ordered provisional measures against Israel for violations in Gaza under the Convention on the Prevention and Punishment of the Crime of Genocide.
The ICJ’s ruling called for an immediate halt to military actions causing harm to the Palestinian people, noted the plea.
It said following the ICJ order, the United Nations experts warned that the continued transfer of weapons to Israel could constitute serious violations of human rights and international humanitarian law, potentially implicating states in genocide.
The petition contended that since India was a signatory to various international treaties and conventions, including the Genocide Convention and the Geneva Conventions, it was under obligation to prevent genocide and refrain from supplying arms to states involved in war crimes.
Exporting military equipment to Israel, which could be used in such crimes, directly contravened these international obligations, submited the petitioners.
The petitioners further cited India’s vote in favour of a UN resolution calling for an immediate ceasefire in Gaza in December 2023. However, India’s subsequent abstention from a similar resolution in April 2024, which also called for an arms embargo on Israel, raised concerns about the country’s potential complicity in the ongoing conflict, they added.
The PIL said at least three companies in India dealing with the manufacturing and export of arms & munitions have been granted licenses for the export of arms & munitions to Israel, even during this period of the ongoing war with Gaza.
These licences have been obtained from either the Directorate General of Foreign Trade (DGFT) or the Department of Defence Production (DDP), which authorise the export of arms and munitions for dual use and specifically for military purposes, it added.
The plea further submitted that Munitions India Limited, a public sector enterprise (PSE), was reportedly permitted to ship its products to Israel in January 2024, with a repeat order under consideration in April 2024.
Similarly, private firm Premier Explosives Limited has been exporting explosives and allied accessories to Israel since 2021, with three licenses granted after the onset of the Gaza conflict.
Furthermore, Adani-Elbit Advanced Systems India Limited, a joint venture between the Adani Group and Israeli company Elbit, has manufactured and exported munitions for over 20 Hermes 900 UAVs/military drones to the Israeli military between 2019 and 2023. These drones have been extensively used in Israel’s military campaign in Gaza, noted the petitioners.
They argued that these actions violated Article 21 of the Indian Constitution, which was available to non-citizens and encompassed the right to life.
The PIL further contended that state actions aiding and abetting the deaths of Palestinians during the ongoing war with Israel fell within the purview of judicial review.
The issuance of these licenses and the export of arms constituted a serious breach of India’s obligations under international law, rendering the actions arbitrary, unreasonable, and violative of Article 14 of the Constitution, it said.
The petitioners include: Ashok Kumar Sharma (retired civil servant and diplomat, who joined Indian Foreign Service in 1981 and retired in 2017), Meena Gupta (retired civil servant, having worked in the Indian Administrative Service from 1971 to 2008), Deb Mukharji (served in Indian Foreign Service from 1964 to 2001), and Achin Vanaik (retired Professor of International Relations and Global Politics and former Dean of the Faculty of Social Sciences, University of Delhi).
The list of petitioners further include Jean Drèze (development economist, currently a Visiting Professor at Ranchi University), Thodur Madabusi Krishna (a pre-eminent vocalist practising the rigorous Carnatic tradition of India’s classical music), Dr. Harsh Mander (human rights and peace worker, writer, columnist, researcher, teacher, Chairperson of Centre for Equity Studies), and Vijayan Malloothra Joseph (Delhi-based research scholar and policy analyst).
The petitioners also include Nikhil Dey {one of the founding members of the Mazdoor Kisan Shakti Sangathan (MKSS)} Feroze Mithiborwala {Indian secular peace activist}, and Prakriti {researcher and activist based in Delhi}.
Filed through Advocate Prashant Bhushan, the petition contended that these exports violated India’s obligations under international law, particularly the Genocide Convention, and infringed upon Articles 14 and 21 of the Indian Constitution, read with Article 51(c).
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