'Any Observation By Us Will Impact The Foreign Policy' CJI On Plea Against Arms Supply To Israel

The Supreme Court hears the plea filed by Ex-bureaucrats and Academics against the government of India’s decision to supply arms to Israel. The bench led by CJI DY Chandrachud, Justice JB Pardiwala, and Manoj Mishra consider the matter.

While representing the petitioner Adv Prashant Bhushan said that Export is to a country that is committing genocide. It is held by ICJ and even by Hague Convention”.

While replaying this, the CJI DY Chandrachud said that the ICJ did not say that Israel committed genocide. “But foreign policy is the subject matter of the foreign policy of the government. Where do we get the jurisdiction to intervene in such a scenario…”, the CJI said. DY Chandrachud added, “Any observation by us will impact the foreign policy of the government of the day”.

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The petitioner representative argued, “they have ratified the genocide convention.” In response CJI said that to convert this in law is the governments job and parliament has not said anything on this.

Bhushan said, “it is held that so long as ratification of a convention not in contravention to a municipal law then it should be read as a municipal law.” In response the CJI said that “union is entrusted to ban exports but union has not taken a call yet”.

Upon asking for any policy the CJI replied, “Can we direct that under the genocide convention you ban the export to israel? why this restraint? this is because it impacts foreign policy and we do not know what the impact will be… ICJ operates in different sphere.. and we are the highest municipal court..”

The Chief Justice cited the relations of India with other nations where currently some or other political or geopolitical issues are going on. DY Chandrachud said, “there is a war between russia and ukraine.. russia is supplying oil to india.. can we direct that india should not get oil from russia because suppose there is a plea which says russia is violating some convention.. we cannot direct that because it is about energy needs of a nation.. and it is exclusive to the foreign policy domain.. see bangladesh also.. there are disturbances also and what should be the extent of our economic engagement with the nation.. we had a defence agreement with Maldives.. look at the impact.. we had our defence personnel there.. they asked us to remove our personnel.. can we direct that indian govt should repatriate all investments back”.

The advocate mentioned the Israel genocidal activities and actions taken by international institutions, “schools, hospitals are bombed, aid workers are bombed and noted by n number of UN bodies and ICJ has noted all of this and that is why it directed that Israel must take steps to stop this genocide.” “spain stopped a ship which was enroute from India to Israel”, he added further.

Justice Pardiwala said that court should not interfere in such matters just based on certain assumptions and the contractual issues are also the part of government decision. “it is your assumption that arms are being used for genocide.. it is a delicate issue and courts should not interfere.. what about contractual obligations”, he said.

Bhushan argued to interprest laws of the country by constitutional court in consonance with international human rights conventions.

The CJI said, “we are an exporter and not just an importer of capital. suppose india is saddled with breach of contract damages and now since we injuncted it,, imagine how arbitration proceedings will pan out. Conduct of foreign policy the court cannot interfere..”

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In response to this the Solicitor General said, “dangerous part is; whether to trump an act of a foreign country as aggression, defence etc is a matter of foreign policy and to see if a treaty applies is in domain of the executive.”

The Chief Justice of India said that to conduct foregin policy comes under article 162 and the provision of article 253 which gives authority to union and parliament. “The court taking over this function would lead to issuance of injunctive relief which will not be in line with the foreign policy. such decisions at policy level are taken with sound rationale. Observations made in this order does not impact the conduct of india’s foreign policy or any sovereign nation who are not amenable to our jurisdiction”, CJI said.