ASHOK KUMAR SHARMA & ORSversusUNION OF INDIA

           [2024] 9 S.C.R. 194 : 2024 INSC 674

               Ashok Kumar Sharma & Ors
                          v.
                     Union of India
             (Writ Petition (Civil) No. 551 of 2024)
                       09 September 2024
[Dr. Dhananjaya Y Chandrachud, CJI, J.B. Pardiwala
              and Manoj Misra, JJ.]

                     Issue for Consideration
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.

                             Headnotes†
Constitution of India – Art. 32 – The petition seeks directions to
the Union Government to cancel existing licences/permissions
and to halt the grant of new licences to companies in India
for the export of arms and military equipment to Israel during
the ongoing conflict in Gaza:
Held: First, the conduct of an independent sovereign nation namely,
Israel is not and cannot be made amenable to the jurisdiction of
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 second aspect of the matter which requires to
be noticed is that the petition seeks a cancellation of the existing
licences and prohibition on the issuance of new licences for the
export of arms and military equipments by Indian companies – Some
of these licenses may be governed by contracts with international
entities, including within the State of Israel – 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 – Third, the statutory provisions of our law
confer sufficient power on the Union Government if it decides to
[2024] 9 S.C.R.                                                           195

              Ashok Kumar Sharma & Ors v. Union of India


     act in such cases – For instance, prohibitions can be imposed
     by the Union of India under the Foreign Trade (Regulation and
     Development Act) as well as under the provisions of the Customs
     Act, 1962 – 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 – The self-imposed
     restraint on Courts entering into areas of foreign policy is, thus,
     grounded in sound rationale which has been applied across time –
     For the above reasons, the reliefs which have been sought in these
     proceedings are not amenable to the exercise of judicial remedies
     under Article 32 of the Constitution. [Paras 7, 8, 9, 10, 11]

                                List of Acts
     Constitution of India; Foreign Trade (Regulation and Development
     Act); Customs Act, 1962.

                             List of Keywords
     Article 32 of the Constitution of India; Sovereign nation; Licenses
     for export of arms and military equipment; Permissions; Conflict
     in gaza; International law obligations; International contracts and
     agreements; International relations; Self-imposed restraints on
     Courts; Foreign Policy.

                            Case Arising From
     CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 551 of 2024
     (Under Article 32 of The Constitution of India)
                         Appearances for Parties
     Prashant Bhushan, Ms. Cheryl Dsouza, Ms. Ria Yadav, Luma Kanta
     Bhandari, Ms. Sulekha Agarwal, Prasanna S, Advs. for the Petitioners.
     Barun Kumar Sinha, Mrs. Pratibha Sinha, Sneh Vardhan, Abhishek,
     Advs. for the Respondent.
                Judgment / Order of the Supreme Court
                                 Judgment
1.   The petition, invoking Article 32 of the Constitution, has been instituted
     by former civil servants, scholars, activists and experts in fields such
     as International Relations, Human Rights and Policy Analysis.
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2.     The petition seeks directions to the Union Government to cancel
       existing licences/permissions and to halt the grant of new licences
       to companies in India for the export of arms and military equipment
       to Israel during the ongoing conflict in Gaza. These companies, as
       the petitioners describe, include a Public Sector Enterprise in the
       Ministry of Defence and private companies which have allegedly
       been granted licenses after October 2023. The petitioners claim a
       violation of India’s international law obligations and of Articles 14,
       21 and 51(c) of the Constitution.
3.     Supporting the submissions of the petitioners, Mr Prashant Bhushan,
       counsel has relied on the rulings of the International Court of Justice
       allegedly into the conduct of Israel in Palestinian territories. The
       submission is that India is bound by international treaties which
       disallow the supply of military weapons to states who have engaged
       in war crimes/genocide.
4.     In other words, the submission is that the continuation of the export
       licences would constitute action complicit against the Genocide
       Convention and other international obligations which India has
       assumed.
5.     The fundamental objection to the maintainability of a petition of the
       nature that is before the Court lies in the fact 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. Apart from
       Article 73, the provisions of Article 253 of the Constitution stipulate
       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 with any other country or countries or any decision
       made at any international conference, association or other body.
6.     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. We are affirmatively of
       the view that the answer to this question must be in the negative
       for more than one reason.
[2024] 9 S.C.R.                                                           197

              Ashok Kumar Sharma & Ors v. Union of India


7.   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.
8.   The second aspect of the matter which requires to be noticed is that
     the petition seeks a cancellation of the existing licences and prohibition
     on the issuance of new licences for the export of arms and military
     equipments by Indian companies. Some of these licenses may be
     governed by contracts with international entities, including within
     the State of Israel. 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.
9.   Third, the statutory provisions of our law confer sufficient power
     on the Union Government if it decides to act in such cases. For
     instance, prohibitions can be imposed by the Union of India under the
     Foreign Trade (Regulation and Development Act) as well as under
     the provisions of the Customs Act, 1962. 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.
10. The danger in the Court taking over this function is precisely that
    it would be led into issuing injunctive reliefs without a full and
    comprehensive analysis or backdrop of the likely consequences of
    any such action. The self-imposed restraint on Courts entering into
    areas of foreign policy is, thus, grounded in sound rationale which
    has been applied across time.
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11. For the above reasons, we have come to the conclusion 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.
12. We clarify that the observations which have been made in the earlier
    part of this judgment are not intended to reflect any opinion by this
    Court either in the conduct of foreign policy by the Government of
    India, or for that matter, by any sovereign nation which is not subject
    to the jurisdiction of this Court.
13. The Writ Petition shall accordingly stand dismissed for the above
    reasons.
14. Pending applications, if any, including the application for intervention/
    impleadment stand disposed of.

       Result of the case: Writ petition dismissed.



       †
           Headnotes prepared by: Ankit Gyan