Source: The Hindu

Introduction

Recently the Supreme Court of India dismissed a petition in the case of Ashok Kumar Sharma and Others v. Union of India. This petition, filed by former civil servants, academics, and activists, sought to stop the Indian government from exporting military equipment to Israel during the ongoing conflict. The petitioners wanted existing licenses suspended and new ones withheld. This case raises important questions about how much courts can review government decisions on foreign policy, especially when there are serious violations of international humanitarian law.

What is the Background and Court Observation in Ashok Kumar Sharma and Others v. Union of India?

Background:

• The petition was filed under Article 32 of the Constitution by former civil servants, scholars, activists, and experts.
• It sought directions to cancel existing licenses and halt new licenses for exporting arms and military equipment to Israel during the ongoing Gaza conflict.
• The petitioners claimed violations of India's international law obligations and Articles 14, 21, and 51(c) of the Constitution.

Court Observations:

• The Court dismissed the petition, on several reasons:
  • Jurisdiction: The authority over foreign affairs is vested with the Union Government under Article 73 of the Constitution.
  • Sovereign immunity: Israel, as a sovereign nation, is not amenable to the Court's jurisdiction.
  • International contracts: Cancelling licenses could lead to breaches of international contracts, affecting Indian companies' financial viability.
  • Statutory provisions: The Union Government has sufficient power under existing laws to act if necessary.
  • Separation of powers: The Court expressed self-imposed restraint on entering areas of foreign policy.
• The Court acknowledged that international law is presumed to be part of national law unless explicitly excluded by the legislature.
• The Court clarified that its observations do not reflect any opinion on the conduct of foreign policy by the Government of India or any sovereign nation not subject to its jurisdiction.
• The Court noted that the government must consider all relevant factors, including international commitments, when making decisions on such matters.
• The Court emphasized that judicial remedies under Article 32 are not appropriate for the reliefs sought in this case.
• The judgment emphasized the potential dangers of the Court issuing injunctive reliefs without a comprehensive analysis of the consequences.
• The Court recognized the government's authority to impose prohibitions under the Foreign Trade (Regulation and Development Act) and the Customs Act, 1962 if deemed necessary.

Why Recently South Africa Filed a Case Against Israel?

• South Africa filed a case against Israel at the International Court Justice (ICJ) under the Convention on the Prevention and Punishment of the Crime of Genocide, alleging genocidal acts against Palestinians in Gaza.
• The ICJ is the principal judicial organ of the UN, settling legal disputes between states, including those related to the interpretation and application of the Genocide Convention.
• The ICJ does not pursue individual criminal responsibility but focuses on state responsibility for genocide.
• Judgments of the ICJ are binding on the parties to the dispute, as per Article 94 of the UN Charter.
• The ICJ ordered provisional measures against Israel in January, including an immediate halt to killings and destruction in Gaza.
• UN experts warned that transferring weapons to Israel may constitute a serious violation of human rights and risk state complicity in international crimes.
• The ICJ declared Israel's presence in the Occupied Palestinian Territory unlawful and stated that all states are obligated not to aid or assist in maintaining this situation.
• In the Nicaragua v. Germany case, the ICJ reminded all states of their international obligations regarding arms transfers to parties in armed conflicts.
• Several countries have halted or suspended arms exports to Israel in light of these legal developments and obligations under international law.
• The ICJ's role is to interpret and apply international law, including the Genocide Convention, in disputes between states.

Conclusion

With the humanitarian crisis in Palestine and international condemnation of Israel’s actions, the Supreme Court of India’s refusal to halt military aid to Israel raises concerns about the Indian government’s compliance with international law. This decision could have significant implications for the conflict and its humanitarian impact, reflecting a missed opportunity to align with global legal and ethical standards.