The Supreme Court Today (Sept 9) dismissed a public interest litigation (PIL) petition challenging the continued supply of arms by Indian companies to Israel amidst its conflict with Palestine. A Bench Led by CJI questioned the Court’s jurisdiction to intervene in foreign policy matters, highlighting that such decisions traditionally fall within the domain of the government.
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NEW DELHI: The Supreme Court of India, on Monday, dismissed a Public Interest Litigation (PIL) that sought to direct the Indian government to halt the export of arms and military equipment to Israel amid the ongoing war in Gaza. The Court ruled that such matters fall within the exclusive domain of the nation’s foreign policy, which it cannot interfere with.
A bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra presided over the case. They addressed the plea to stop Indian firms from exporting arms and military equipment to Israel, which has been involved in significant military operations against Gaza.
The court remarked that preventing these firms from fulfilling their contractual obligations could lead to legal challenges.
“We cannot enter into the nation’s foreign policy domain,”
-the bench asserted, underlining the judiciary’s limitations in matters of foreign relations.
Chief Justice Chandrachud also emphasized the complexity of the issue, saying,
“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.”
Further explaining the court’s position, the Chief Justice said,
“Foreign policy is the subject matter of the foreign policy of the government. Where do we get the jurisdiction to intervene in such a scenario? ICJ did not say that Israel committed genocide … Any observation by us will impact the foreign policy of the government of the day.”
The PIL, filed by Ashok Kumar Sharma and others, through advocate Prashant Bhushan, argued that
“Any supply of arms and munitions to the State of Israel by India is morally unconscionable and legally and constitutionally unsustainable.”
The petitioners referenced international law and reports from United Nations bodies concerning Israel’s actions in Gaza, including reports about the bombing of hospitals and attacks on aid workers.
However, the court was not persuaded by these arguments. While it acknowledged that international law is presumed to be part of national law, it highlighted that enforcing such laws in this instance would require legislative action by the Indian Parliament. Without such action, the judiciary cannot intervene.
Justice J.B. Pardiwala also pointed out that it was based on the petitioners’ own interpretation that arms supplied to Israel were being used for genocide.
“It is your assumption that arms are being used for genocide … It is a delicate issue and courts should not interfere … What about contractual obligations?”
-he remarked, stressing the importance of honoring agreements with defense firms.
Bhushan continued his arguments by referring to reports from international organizations, particularly the UN and the International Court of Justice (ICJ), which criticized Israel’s actions. He contended that the Indian judiciary has a constitutional duty to interpret national laws in alignment with international human rights conventions.
Despite these arguments, the bench was unconvinced. The Chief Justice added another layer of complexity, noting that India is not only an importer but also an exporter of capital, and any interference in arms contracts could lead to complications in arbitration.
“We are an exporter and not just an importer of capital. Suppose India is saddled with breach of contract damages and now since we injuncted it… imagine how arbitration proceedings will pan out. Conduct of foreign policy the court cannot interfere,”
-the Court explained.
Solicitor General Tushar Mehta, representing the government, emphasized that determining whether an action is an act of aggression or defense is strictly within the executive’s purview, not the judiciary’s. He argued that the court should not dictate the nation’s foreign policy through such rulings.
Ultimately, the Court rejected the PIL, reiterating its stance that the judiciary would be overstepping its boundaries if it directed the government to halt arms exports to Israel.
It concluded that while international law forms part of national law, the judiciary cannot force the government to impose an arms ban without undermining both international obligations and contractual commitments.
The PIL arose against the backdrop of the ongoing war between Israel and Gaza. Israel’s military operations in Gaza, in response to an unprecedented attack by Hamas on October 7, 2023, led to the deaths of approximately 1,200 people in Israel.
Since then, the conflict has escalated, resulting in the deaths of thousands of Palestinians, drawing widespread international concern.
BACKGROUND
A Public Interest Litigation (PIL) was filed in the Supreme Court of India, seeking a directive to the central government to cancel existing licenses and halt the issuance of new ones to Indian companies that are exporting arms and military equipment to Israel, which is currently engaged in a conflict in Gaza.
The PIL, filed through lawyer Prashant Bhushan, argues that such exports are in violation of international laws to which India is a signatory.
The PIL makes the Union Ministry of Defence (MoD) a party in the case, stating that
“India is bound by various international laws and treaties that obligate India not to supply military weapons to States guilty of war crimes, as any export could be used in serious violations of international humanitarian law.”
The petition was brought forth by 11 individuals, including Ashok Kumar Sharma, a resident of Noida, and claims that the sale of military equipment to Israel violates India’s commitments under international law, as well as Articles 14 and 21 of the Indian Constitution, which protect equality before the law and the right to life, respectively.
The plea further requests the court to-
“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…”
In support of its arguments, the petition cites recent rulings from the International Court of Justice (ICJ). Specifically, it refers to a decision from January 26, 2024, in which the ICJ ordered provisional measures against Israel for violations in the Gaza Strip, as part of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.
The plea notes that the ICJ’s provisional measures include-
“an immediate military halt to all killings and destruction that is being perpetrated by Israel on the Palestinian people.”
It also mentions that-
“United Nations experts released a statement warning against the transfer of weapons and military ammunition to Israel which may constitute a serious violation of human rights and international humanitarian laws and risk state complicity in international crimes, possibly including genocide.”
The PIL emphasizes that-
“India is bound by various international laws and treaties that obligate India not to supply military weapons to States guilty of war crimes.”
This point is central to the argument that any such exports could be used in serious violations of international humanitarian law.
The context of the war in Gaza is also highlighted in the petition. It mentions that Israel’s actions have resulted in the deaths of thousands of Palestinians, following an unprecedented attack on October 7, 2023, in which Hamas gunmen crossed into Israel from Gaza, killing approximately 1,200 people.
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