Supreme Court Declines Role in Foreign Policy: Dismisses Plea to Halt Arms Exports to Israel

“The self-imposed restraint on Courts entering into areas of foreign policy is thus grounded in sound rationale which has been applied across time.” – Chief Justice D.Y. Chandrachud, writing for the majority.

In a significant ruling, the Supreme Court of India dismissed a petition filed by Ashok Kumar Sharma and others, which sought a directive to the Union Government to cancel existing licenses and prohibit the issuance of new ones for the export of arms to Israel. The petitioners, including former civil servants and international relations experts, argued that India's continued arms exports during the ongoing Gaza conflict violated both international law and constitutional provisions, specifically Articles 14, 21, and 51(c) of the Constitution.

The case reached the Supreme Court under Article 32 of the Constitution, which provides for the protection of fundamental rights. The petitioners contended that India’s actions were complicit in violations of international treaties, including the Genocide Convention, by allowing arms exports to a state allegedly involved in war crimes.

The core issue before the Court was whether it could issue a writ under Article 32 to compel the Union Government to halt arms exports to Israel, considering the alleged international law violations. The petitioners argued that India’s obligations under international treaties required it to cease military support to states accused of war crimes.

The Supreme Court, led by Chief Justice D.Y. Chandrachud, rejected the petition for multiple reasons. The judgment underscored the constitutional provisions that place foreign affairs and defense under the purview of the Union Government, specifically under Articles 73 and 253. The Court emphasized that decisions on foreign policy, including military exports, rest solely with the government, not the judiciary.

The Court highlighted that for it to grant relief, it would need to assess Israel's conduct in Gaza, a sovereign nation beyond the Court's jurisdiction. Furthermore, any judicial intervention could potentially breach international contracts, which would have far-reaching consequences, including financial liabilities for Indian companies engaged in arms trade.

The ruling affirmed long-standing judicial restraint in matters of foreign policy. The Court reinforced the principle that international law is integrated into domestic law unless explicitly excluded by legislation. However, it stated that decisions involving geopolitical and economic considerations are best left to the government, which can act under the Foreign Trade (Regulation and Development Act) and the Customs Act, 1962, if necessary.

The Supreme Court concluded that the petition was not maintainable under Article 32, reiterating that the judiciary cannot interfere in the government’s conduct of foreign policy. The petition was dismissed, with the Court clarifying that its observations did not reflect on India’s or any other nation’s foreign policy.

This ruling reinforces the autonomy of the executive branch in conducting foreign policy and emphasizes the judiciary’s limited role in such matters. Legal experts suggest that the judgment will serve as a precedent in future cases where petitions challenge India’s international relations and trade decisions on constitutional grounds. The decision also underscores the importance of maintaining separation between judicial and executive functions in matters of global diplomacy and defense.

Date of Decision: September 09, 2024

Ashok Kumar Sharma & Ors. vs Union of India