Summary
The Supreme Court dismissed an Article 32 petition seeking directions to the Union Government to cancel existing licences and stop granting new licences for export of arms and military equipment to Israel during the Gaza conflict, holding that the reliefs sought fall within the domain of foreign policy and are not amenable to judicial remedies under Article 32.
Issues
- Whether the Supreme Court under Article 32 can direct the Union Government to cancel existing licences and halt new licences for export of arms and military equipment to Israel.
- Whether the Court could grant such relief when it would require findings on the conduct of a foreign sovereign State not subject to its jurisdiction.
Provisions considered
- Article 73, Constitution of IndiaRelied on to note that the authority and jurisdiction over the conduct of foreign affairs is vested in the Union Government, which founded the objection to maintainability. (¶ 5)
- Article 253, Constitution of IndiaNoted as conferring on Parliament the power to make laws implementing treaties, agreements and conventions and decisions of international bodies, reinforcing that implementation of international obligations lies with the political branches. (¶ 5)
- Article 32, Constitution of IndiaThe Court held that the reliefs sought, cancellation of export licences and prohibition of new ones, are not amenable to the exercise of judicial remedies under Article 32. (¶¶ 6, 11)
- Powers of prohibition, Customs Act, 1962; Foreign Trade (Development and Regulation) ActCited as examples of statutes conferring sufficient power on the Union Government to impose prohibitions if it decides to act, the decision being one for the Government considering economic, geo-political and other national interests. (¶ 9)
Held
- International law is presumed to be part of the law of the nation unless excluded expressly or by necessary implication by the competent legislature; but that presumption does not answer whether the Court can issue a writ directing cancellation of arms export licences, and that question must be answered in the negative. (¶ 6)
- Granting the reliefs would require the Court to record findings on the allegations against Israel, a sovereign State that is not and cannot be made amenable to the Court's jurisdiction; absent jurisdiction over a sovereign State, entertaining such reliefs is impermissible. (¶ 7)
- An injunction cancelling existing licences would amount to a judicial direction to breach international contracts, the consequences of which the Court cannot appropriately assess and which could expose Indian companies to damages claims affecting their financial viability. (¶ 8)
- The statutory framework gives the Union Government sufficient power to impose prohibitions if warranted; whether to act is for the Government, weighing economic, geo-political and other interests and India's international commitments. Judicial self-restraint in matters of foreign policy rests on sound rationale because courts would otherwise grant injunctions without a full analysis of consequences. (¶¶ 9, 10)
- The Court clarified that its observations do not reflect any opinion on the conduct of foreign policy by the Government of India or by any sovereign nation outside its jurisdiction. (¶ 12)
Result
Writ petition dismissed; pending applications, including for intervention/impleadment, disposed of.