Matter of foreign policy: SC rejects plea for halting arms export to Israel

The Supreme Court on Monday dismissed a PIL seeking a direction to the Centre to stop the export of arms and military equipment to Israel which is fighting a war in Gaza, saying it cannot enter into the foreign policy domain and "national self-interest has to be evaluated by the government".

A bench comprising Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra said Indian firms, involved in the export of arms and equipment to Israel, may be sued for breach of contractual obligations if they are stopped by it from supplying.

"We cannot enter into the nation's foreign policy domain," the bench said, adding, "It is a matter of foreign policy which is to be handled by the government.

"How can the court tell the government that there should not be exports of arms to a country... Where does the court get that sort of power? National self-interest has to be evaluated by the government," the court said.

The court also referred to the war between Russia and Ukraine and the import of oil by India.

"Russia is exporting oil to India. Can we direct the government that you shall stop exporting oil to India? It is a matter of energy needs," the CJI said, adding that the foreign policy has to be dealt with by the government.

It also said that the sovereign nation of Israel cannot be made amenable to the jurisdiction of this court.

"We are affirmatively of the view that that the answer to this question (stop the supply of arms) must be the negative for more than one reason... First, the grant of relief in the present proceedings is 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," the bench said in the order.

"Can we direct that under the UN's genocide convention, you ban the export to Israel... why this restraint. This is because it impacts the foreign policy and we do not know what the impact will be," the CJI said.

The bench said in cases of foreign affairs, the authority and jurisdiction are vested with the central government under Article 162 of the Constitution.

For it to grant the reliefs sought in the PIL, the apex court said it will have to render findings on the allegations like war crimes and genocide against Israel, which is a sovereign nation on which Indian courts have no jurisdiction at all.

Moreover, the issue of prohibiting foreign trade with any country squarely falls under the policy domain of the central government.

At the outset, Prashant Bhushan, appearing for petitioners Ashok Kumar Sharma and others, said the matter pertained to the export of arms and military equipment to a country that he alleged is "committing genocide and bombing civilians, schools and hospitals in Gaza".

He referred to the rulings of the ICJ and said even by the Hague Convention it has to be stopped as India is a signatory to UN conventions on genocide.

"But the foreign policy is the subject matter of the government. Where do we get the jurisdiction to intervene in such a scenario," the bench said.

The bench also referred to the conflict with the Maldives and said, "When a new government came there, they asked us to remove our military personnel. But, can we then ask Indian tourists not to go there."

"Hence, for this court to consider the grant of the reliefs as sought, it would inevitably become necessary to enter a finding of fact in regard to the fundamental allegations which have been levelled 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," the bench said.

It clarified its observations made in the order do not reflect any opinion of the court “either in the conduct of foreign policy, by the Indian government, or, for that matter, by any sovereign foreign nation which is not amenable, which is not subject to the jurisdiction of this court”.

A PIL had sought a direction to the Centre to cancel licences and not to grant new ones to Indian firms exporting arms and other military equipment to Israel.

The plea filed by 11 people, including Ashok Kumar Sharma, a resident of Noida, said the supply of military equipment to Israel by companies, including a public sector enterprise, under the MoD violates India's obligations under international law coupled with Articles 14 and 21 of the Constitution.

"Issue a writ of mandamus or any other appropriate writ or direction to the respondents, Union of India, through its various organs, to cancel any existing licences and halt the grant of new licences/permissions, to various companies in India, for export of arms and other military equipment to Israel...," the plea had said.

The International Court of Justice on January 26 ordered provisional measures against Israel for violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, the plea said.

Israel's war on Gaza has led to killings of thousands of Palestinians. Prior to this, in an unprecedented attack, Hamas gunmen stormed across Gaza's border into Israel and killed about 1,200 people on the morning of October 7, 2023.