The Emperor’s New Courts: The Supreme Court’s Judgement on India's Arms Transfers to Israel

*Shagnik Mukherjea

On 9 September 2024, the Supreme Court of India (‘Court’), in Ashok Kumar Sharma v. Union of India, dismissed the petition which sought for cancelling existing licenses and prohibiting the issuance of new ones for the export of military arms and equipment to Israel amid its ongoing conflict with Hamas. This decision adds to a growing number of national cases challenging their governments’ arms exports to Israel, highlighting a broader global trend of public interest litigation on international issues. While international cases such as Nicaragua v. Germany at the International Court of Justice (‘ICJ’) often attract more media attention and may have a greater influence on a State’s actions, national cases present a unique opportunity. They do not rely on foreign States to enforce accountability and are particularly suited to jurisdictions, like India, with broad and well-defined administrative law frameworks.

At the outset, however, two critical points need to be addressed. First, bringing this case under Article 32 of the Constitution of India was indeed an insurmountable hurdle. It requires a prima facie breach of fundamental rights under the Constitution, a condition that the alleged violations of international humanitarian law (‘IHL’) and other international laws in Gaza do not meet. Alternatively, even if such a breach were established, it would require the parties to have the standing necessary to challenge these State actions, which the current petitioners lack. A more appropriate approach would have been under Article 226, which allows courts to issue orders without the need for a fundamental rights violation. Second, and more notably, the Court did not actually rely on this procedural issue to dismiss the petition. Instead, it chose to base its decision on three other procedural grounds, none of which appear particularly convincing.

In light of this, the author examines the existing legal framework governing arms transfers in India, the three grounds on which the Court dismissed the case, and how the Court’s final stance seems to abdicate its duty by avoiding substantive engagement with the issues at hand.

Applicable Legal Framework

In K.S. Puttaswamy, the Court reiterated that, under Articles 51 and 253 of the Indian Constitution, the State is required to fulfil its international obligations (para. 133). This involves integrating specific provisions into the domestic legal framework, either through the harmonious interpretation of existing laws or by enacting new legislation.

India, however, is not a party to the Arms Trade Treaty and is thus not legally bound by the criteria outlined in Article 6. Nonetheless, Common Article 1 of the Geneva Conventions prohibits complicity in violations of IHL – state responsibility that can be triggered through arms transfers. The Article reads, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This is widely interpreted as an obligation on States not to encourage or assist any party to an armed conflict in violating IHL. As a result, arms-exporting States face a particularly compelling duty to ensure compliance, as their exports can serve as the very means through which violations of IHL are carried out (User’s Guide to the EU Common Position, p. 55).

Regarding India’s internal framework, the Handbook of Procedure, issued by the Directorate General of Foreign Trade, sets forth the general criteria for approving export licenses for dual-use goods. Specifically, paragraph 10.06(I) states:

“(a) Credential of end-user, credibility of declaration of end-use of the item or technology, integrity of chain of transmission of item from supplier to end-user, and on potential of the item or technology, including timing of its export, to contribute to end-uses that are not in conformity with India’s national security or foreign policy goals and objectives, goals and objectives of global non-proliferation, or India’s obligations under International Treaties/Agreements/Conventions to which it is a State party;

(b) Assessed risk that exported items will fall into hands of terrorists, terrorist groups, and non-State actors; 

(c) Export control measures instituted by the recipient State; 

(d) Capabilities and objectives of programmes of the recipient State relating to weapons and their delivery; 

(e) Assessment of end-use(s) of item(s); 

(f) Applicability of provisions of relevant bilateral or multilateral Agreements and Arrangements, to which India is a party, or adherent. This is including but not limited to the control lists of the Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group (and its Warning List or Awareness Raising Guidelines) and Wassenaar Arrangement (and its Sensitive List and Very Sensitive List) as amended from time to time.” (emphasis supplied).

In a 2017 notification, the authority to grant export licenses for military arms and equipment (which falls under Category 6 of the SCOMET List) was delegated to the Secretary (or, in some cases, the Joint Secretary) of the Ministry of Defence Production. This revised framework requires a signed end-user certificate by the receiving State and consultation with the Ministry of Foreign Affairs, the Planning and International Cooperation Wing of the Ministry of Defence, the Defence Research and Development Organisation, and other relevant agencies (para. 6.1). License approval requires consensus among stakeholders; complex cases without consensus are referred to the Defence Export Steering Committee, and if consensus is still not reached, to the Minister of Defence for a final decision (para. 5).

This framework stands in stark contrast to the more elaborate criteria outlined in the EU Common Position on Arms Exports, the UK’s Strategic Export Licensing Criteria, and the US's Leahy Law, all of which explicitly consider the risk of IHL violations. Regardless, in light of numerous reports from NGOs, the United Nations, and even independent assessments by countries like the United Kingdom, Canada, the Netherlands, and Spain highlighting the serious risks of IHL violations and even genocide by the Israeli Defense Forces, it remains perplexing that India’s framework has yet to reflect these concerns. India continues to export military arms and equipment, which appears to be inconsistent with the general criteria outlined in grounds (a), (d), and (f), given India’s international obligations.

Unreasonable Grounds of Dismissal

The Court did not address the case on its substantive merits. Instead, it dismissed the petition based on three procedural grounds, ruling that under Article 32, it could not direct the Union Government to cancel existing licenses or prohibit new ones for exporting military arms and equipment to Israel (para. 6). While the procedural issue under Article 32 presents its own challenges (as previously noted), the grounds adopted by the Court are unconvincing.

First, the Court asserts that the present case would inevitably require a judgment on Israel's conduct in its ongoing conflict with Hamas. As a result, the Court concludes that it cannot subject Israel to its jurisdiction and that granting any relief would be impermissible (para. 7). This reasoning is fundamentally flawed. The case did not require an adjudication of the legality of Israel’s military actions in Gaza, which would indeed necessitate Israel’s participation. Instead, the case was centred on extensive reports suggesting potential war crimes and other IHL violations by the Israeli Defence Forces, with the aim of invoking India’s domestic arms export framework. The central issue was whether India’s continued support to a State with a high risk of IHL violations was permissible under its own legal framework. This does not depend on whether Israel’s actions were conclusively a violation of IHL; even a plausible risk of such violations (ICRC Commentary, para. 162), as highlighted by the ICJ’s provisional orders in South Africa v. Israel, should have sufficed.

Second, the Court observes that cancelling existing licenses and prohibiting new ones might breach international contracts and agreements, and thus, considers this analysis beyond its scope (para. 8). In this regard, it is relevant to note that the ICJ, in its Advisory Opinion on Israel’s Practices and Policies, has affirmed that States should avoid assisting Israel in maintaining its illegal presence in the occupied Palestinian territories, including through economic or trade dealings that could reinforce this unlawful presence (paras. 278–279). Nonetheless, the Court’s reluctance to issue directions that might potentially breach such contracts, as opposed to the Government making the same decision, parallels the following ground.

Third, and unsurprisingly, the Court invokes the doctrine of separation of powers, asserting that decisions on foreign affairs should be left to the executive under Article 73 of the Constitution. While this deference is often practical, providing the State with flexibility in managing its international relations, the Court’s role here was not to review India’s foreign policy stance. Instead, it was tasked with applying India’s domestic legal framework and assessing the Government’s actions within that context. Importantly, the Supreme Court is both empowered and encouraged to exercise broad discretion in granting relief. It should not dismiss petitions solely due to improperly framed requests for relief; rather, it has the authority to issue general directions as deemed appropriate (Chiranjit Lal Chowdhuri v. Union of India, p. 22). And although the Court cannot mandate a specific decision by the relevant authority (Ujjam Bai v. State of Uttar Pradesh, p. 35), it has previously stepped in to issue guidelines to address gaps left by the executive or legislative branches (Visakha v. State of Rajasthan, p. 6) and to suggest the creation or modification of existing mechanisms (Vineet Narain v. Union of India, p. 35). Given this expansive authority, it is clear that the Court, rather than merely deferring to the executive, could have adjusted the relief in light of the deteriorating humanitarian situation in Gaza. At a minimum, it could have issued general directions to review the export licenses granted by the appropriate authorities, even if it chose not to directly engage the substantive merits of the case.

What Remains of the National Courts?

Other national cases challenging arms exports to Israel have generally met with similar results, with the Netherlands being a notable exception. German courts have repeatedly declined to intervene, and British courts initially took a similar stance. It was only after a review by the Foreign Secretary that the United Kingdom decided to suspend pending arms exports.

In this context, the Supreme Court of India was well placed to at least issue a declaratory judgment, especially given the ongoing cases at the ICJ, and reaffirm the international obligations surrounding assistance to parties in armed conflicts. Instead, it merely defers to the executive and dismisses the petition based on three relatively weak procedural grounds.

With this being said, it is important to clarify that this is not intended to serve as a blanket critique of the doctrine of separation of powers or the necessary deference owed to the executive in foreign policy matters – a position adopted, to varying degrees, across common and civil law jurisdictions. The concern arises in situations where the executive operates beyond the leeway defined by applicable law (see Gil on the issue of being overly deferential). 

In such cases, it is the court's duty to define these boundaries and ensure the executive remains within them, thereby upholding the rule of law. Excessive deference, especially when the Court’s jurisdiction is constitutionally designed to be broad enough to provide necessary relief, does not uphold the separation of powers. Instead, it abdicates the very duty the Court is meant to perform.

Shagnik Mukherjea is an undergraduate student at the Rajiv Gandhi National University of Law, Punjab.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.