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2024 (9) TMI 1759 - SC - Indian LawsMaintainability of a petition - Supreme Court under Article 32 of the Constitution can entertain a petition seeking directions to the Union Government to cancel existing licenses and halt the grant of new licenses for the export of arms and military equipment to a foreign sovereign state (Israel) during an ongoing conflict or not - export licenses violate India s international law obligations or not - HELD THAT - There is a presumption that international law is a part and parcel of the law of the nation unless the application of a principle of international law is excluded expressly or by necessary implication by the competent legislature. However the basic issue which falls for consideration in the present proceedings is whether the Court under Article 32 can issue a writ to the Union Government to cancel existing licences and halt the issuance of new licences for the export of arms and military equipments to Israel. First any grant of relief in the present proceedings is presaged on the submission of the petitioners 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. Hence for this Court to consider the grant of the reliefs as sought it would inevitably become necessary to enter a finding in regard to the allegations which have been leveled 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 grant of injunctive relief by this Court would necessarily implicate a judicial direction for breach of international contracts and agreements. The fall out of such breaches cannot be appropriately assessed by this Court and would lay open Indian companies which have firm commitments to proceedings for damages which may affect their own financial viability - Whether in a given case any such action is warranted is a matter which has to be decided by the Union Government bearing in mind economic geo-political and other interests of the nation in the conduct of international relations. In taking an appropriate decision the Government bears into account all relevant considerations including the commitments of the nation at the international level. Conclusion - The reliefs which have been sought in these proceedings are not amenable to the exercise of judicial remedies under Article 32 of the Constitution. Petition dismissed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court in this matter are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Justiciability of the Petition under Article 32 regarding Arms Export Licenses Relevant legal framework and precedents: Article 32 of the Constitution provides a fundamental right to move the Supreme Court for enforcement of fundamental rights. However, the conduct of foreign affairs, including defense exports, falls under the executive domain per Article 73, which vests the Union Government with authority over foreign relations. Article 253 empowers Parliament to enact laws implementing treaties and international agreements. Judicial restraint in foreign policy matters is a well-established principle. Court's interpretation and reasoning: The Court held that the petition seeking cancellation of arms export licenses involves the conduct of a foreign sovereign state (Israel), which is beyond the Court's jurisdiction. Entertaining the petition would necessitate adjudicating on the conduct of Israel, a sovereign nation not amenable to the Court's jurisdiction. This would be impermissible. The Court emphasized that judicial intervention in foreign policy matters is limited and must be exercised with restraint. Key evidence and findings: The petitioners relied on international rulings and treaties alleging war crimes and genocide by Israel, and claimed India's complicity through arms exports. However, the Court found that such allegations require assessment of foreign sovereign conduct, which is outside its jurisdiction. Application of law to facts: The Court concluded that the petition is not maintainable under Article 32 because it seeks relief that would require the Court to pass judgment on foreign sovereign actions and interfere with executive prerogatives in foreign policy. Treatment of competing arguments: While the petitioners argued that India is bound by international law and constitutional mandates to not facilitate war crimes, the Court held that such matters are to be addressed by the executive, which has the constitutional mandate and expertise to balance international obligations and national interests. Conclusion: The Court declined to exercise jurisdiction under Article 32 to grant the relief sought. Issue 2: Judicial Interference with Existing Contracts and International Agreements Relevant legal framework and precedents: Contracts involving export licenses may be governed by international law and agreements. Judicial orders that interfere with such contracts can lead to breaches, exposing parties to liability and financial consequences. Court's interpretation and reasoning: The Court observed that cancellation of existing licenses could amount to a breach of contractual obligations entered into by Indian companies with foreign entities, including those in Israel. The Court recognized that it cannot assess the complex consequences of such breaches, including potential damages and impact on companies' financial viability. Key evidence and findings: The Court noted the existence of contracts underpinning some licenses but did not delve into specifics, focusing instead on the principle that judicial intervention could have unintended adverse consequences. Application of law to facts: The Court reasoned that injunctive relief in such a context is inappropriate as it risks undermining contractual commitments and international commercial relations. Treatment of competing arguments: Petitioners' concerns about complicity in war crimes were weighed against the practical and legal implications of disrupting contracts. The Court favored restraint and deference to the executive. Conclusion: The Court refused to grant relief that would interfere with existing contracts and international agreements. Issue 3: Adequacy of Executive Powers and Statutory Framework to Regulate Arms Exports Relevant legal framework and precedents: The Foreign Trade (Regulation and Development) Act and the Customs Act, 1962, empower the Union Government to regulate exports, including imposing prohibitions. The executive is constitutionally entrusted with managing foreign affairs and balancing economic, geopolitical, and international treaty obligations. Court's interpretation and reasoning: The Court highlighted that the Union Government has sufficient statutory and constitutional powers to act if it deems necessary to regulate or prohibit arms exports. The decision to do so involves a complex assessment of national interests and international commitments, which is best left to the executive. Key evidence and findings: The Court noted that the Government's discretion in foreign policy matters is broad and informed by multiple considerations beyond the scope of judicial review. Application of law to facts: The Court underscored that judicial intervention in this domain would be premature and inappropriate, given the existing executive powers and responsibilities. Treatment of competing arguments: While petitioners sought judicial directives, the Court emphasized the importance of executive discretion in foreign relations and the risks of judicial overreach. Conclusion: The Court affirmed that the executive has adequate powers and that judicial interference is unwarranted. 3. SIGNIFICANT HOLDINGS The Court held unequivocally that "the reliefs which have been sought in these proceedings are not amenable to the exercise of judicial remedies under Article 32 of the Constitution." It was emphasized that "the authority and jurisdiction in relation to the conduct of foreign affairs is vested with the Union Government under Article 73 of the Constitution," and that "Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention" under Article 253. The Court reasoned that "it would be impermissible for this Court to entertain the grant of reliefs of this nature" because it would require adjudication on the conduct of a foreign sovereign state not subject to the Court's jurisdiction. Further, the Court noted that "the statutory provisions of our law confer sufficient power on the Union Government if it decides to act in such cases," including under the Foreign Trade (Regulation and Development) Act and Customs Act, 1962. On judicial restraint, the Court observed: "The self-imposed restraint on Courts entering into areas of foreign policy is, thus, grounded in sound rationale which has been applied across time." Finally, the Court clarified that its observations do not express any opinion on the conduct of foreign policy by the Government of India or any sovereign nation, underscoring the limits of judicial review in such matters.
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