Summary of the Judgments
Case Name: Ashok Kumar Sharma & Ors vs Union of India
Date: 9th September 2024
Court: Supreme Court of India
Judges: Hon'ble Chief Justice Dr. Dhananjaya Y Chandrachud, Hon'ble Justice J B Pardiwala, and Hon'ble Justice Manoj Misra
Advocates: Mr. Prashant Bhushan represented the petitioners
Acts/Sections Cited: Article 32, Article 73, Article 253, Foreign Trade (Regulation and Development Act), Customs Act, 1962
Cited Judgments: International Court of Justice rulings on Israel’s conduct in Palestinian territories
Introduction
In Ashok Kumar Sharma & Ors vs Union of India, a petition under Article 32 of the Constitution was filed by former civil servants, scholars, and activists seeking the cancellation of arms export licences granted to companies in India for supplying military equipment to Israel amidst the ongoing conflict in Gaza. The petitioners, invoking India’s international obligations, contended that the continued export of arms to Israel violates the Genocide Convention and Articles 14, 21, and 51(c) of the Indian Constitution.
International Obligations and India’s Role
The petitioners, represented by Mr. Prashant Bhushan, argued that India is bound by several international treaties, including the Genocide Convention, which prohibits the supply of military weapons to countries involved in war crimes or genocide. Relying on the rulings of the International Court of Justice, they contended that India’s continued supply of arms to Israel constituted a violation of its obligations under international law.
Mr. Bhushan presented that the export licenses issued after October 2023 to various Indian companies, including a Public Sector Enterprise in the Ministry of Defence, directly violated international norms and needed immediate cancellation. This argument also brought into question India’s geopolitical stance, as the petitioners asserted that such exports implicate India in the ongoing conflict.
The Role of the Court
The crux of the judgment hinged on the Court's jurisdiction to entertain such matters. As articulated by Hon'ble Chief Justice Dr. Dhananjaya Y Chandrachud, the conduct of foreign affairs is firmly vested in the Union Government under Article 73 of the Constitution. Moreover, Article 253 grants Parliament the authority to implement treaties and conventions. Thus, the question posed before the Court was whether it could intervene in matters of foreign policy by issuing a writ to cancel arms export licenses.
The judgment clarified that while international law is presumed to be part of national law unless explicitly excluded, the Court cannot exercise jurisdiction over a sovereign nation, in this case, Israel. Consequently, any relief granted by the Court would require a finding on the alleged conduct of Israel in Gaza, which falls outside its purview.
Judicial Restraint in Foreign Policy
The judgment reaffirms the principle of judicial restraint, particularly concerning foreign policy. The Hon'ble Chief Justice noted that while the petitioners raised significant issues, including potential violations of international law, it would be impermissible for the Court to adjudicate upon the conduct of a sovereign nation like Israel. The Court, thereby, declined to issue the writ for cancellation of the licences, stating:
“It would be impermissible for this Court to entertain the grant of reliefs of this nature. The sovereign nation of Israel is not and cannot be made amenable to the jurisdiction of this Court.”
This decision reinforces the long-standing principle that Courts should refrain from intervening in matters of foreign policy, which are best left to the executive arm of the government. The judges emphasized that foreign policy decisions involve complex factors, including geopolitical considerations, which the judiciary may not be equipped to fully assess.
Commercial Contracts and Legal Liabilities
An important dimension of the judgment was its recognition of the potential commercial ramifications of cancelling existing licences. The Court highlighted that some of these licences may be tied to contracts with international entities, including Israeli companies. Cancelling such contracts could result in claims for damages against Indian companies, which would not only affect their financial viability but also expose them to international litigation.
Hon'ble Justice J B Pardiwala stated:
“The grant of injunctive relief by this Court would necessarily implicate a judicial direction for breach of international contracts and agreements.”
This observation underscores the intricate balance that courts must maintain between legal principles and commercial realities. The Court, in this case, wisely opted not to issue directions that could disrupt international agreements and have far-reaching consequences for Indian businesses.
Statutory Powers of the Union Government
The judgment also touched upon the statutory powers available to the Union Government under existing laws, such as the Foreign Trade (Regulation and Development Act) and the Customs Act, 1962. These laws provide the government with sufficient authority to impose prohibitions on the export of military equipment if deemed necessary.
Thus, the Court reiterated that decisions regarding the issuance or cancellation of export licences should be left to the Union Government, which can evaluate the situation based on economic, geopolitical, and international commitments. The judiciary’s involvement in such matters, the Court observed, could lead to unintended consequences.
Conclusion and Implications
In dismissing the writ petition, the Supreme Court reinforced the separation of powers between the judiciary and the executive in the domain of foreign affairs. The decision affirms that while the judiciary has a crucial role in safeguarding constitutional rights, it must exercise restraint in areas that fall under the purview of the executive, such as foreign policy and international relations.
The Court’s refusal to interfere in the export of arms to Israel reflects a pragmatic approach that acknowledges the complexities of international law, commercial contracts, and India’s geopolitical interests. The judgment also serves as a reminder that the judiciary’s powers are not limitless and must be exercised with caution, particularly when dealing with sensitive matters involving foreign states.
In this judgment, the Supreme Court has carefully navigated the fine line between upholding constitutional values and respecting the prerogative of the executive in conducting foreign affairs. By doing so, it has avoided creating a precedent that could have unintended ramifications for India’s international relations and commercial engagements.
Ultimately, the dismissal of the petition does not signify the Court’s approval of the arms exports to Israel, but rather its recognition of the appropriate forum for addressing such issues—namely, the Union Government, which has the constitutional mandate to handle foreign policy.
“The self-imposed restraint on Courts entering into areas of foreign policy is grounded in sound rationale which has been applied across time,” noted Hon'ble Justice Manoj Misra, encapsulating the Court’s position on the matter.
This decision underscores the importance of maintaining a balance between judicial activism and judicial restraint, particularly in a globalized world where the actions of one nation can have profound implications for others. The judgment serves as a landmark in reaffirming the principles of judicial non-interference in foreign policy, commercial contracts, and international law.
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