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Has the Supreme Court of India missed a golden opportunity to hold the Union government to account for its international law obligations and protect India from international charges of abetment of genocide?
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"The importance of adhering to international law, agreements and understandings is not a theoretical debate… The advantage of being perceived as a rule-abiding and responsible player cannot be underestimated."
— Shri S. Jaishankar, external affairs minister of India in The India Way (2020)
IN 2019, M.K. Ranjitsinh Jhala, the renowned wildlife conservationist, joined hands with other conservationists to file a writ petition before the Supreme Court of India (SC) against the government of India regarding the protection of the great Indian bustard.
They argued that the overhead transmission lines used for the supply of electricity generated through wind and solar energy resulted in the loss of the population of the great Indian bustard in Gujarat and Rajasthan.
The court ruled in favour of the government (and the companies involved in those projects) by clothing its argument in international law obligations of India. Some aspects of the petition continue to be sub judice.
“The judges took a different route to achieve the end goal— ensuring that the commercial interest of the government and corporations is not hindered.
Paragraph 58 from that decision deserves more discussion. In that paragraph, the Supreme Court talked about situations where India has committed to something under international law but has not yet made domestic laws in that regard.
It noted that: "India's international obligations and commitments in the present case have not been enacted in domestic law. Regardless, the court must be alive to these obligations while adjudicating writ petitions that seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India's international commitments as well as the right to be free from the adverse effects of climate change."
What the court essentially said was that in case of the absence of domestication of India's international law obligations, if a petition requests something that might hinder the performance of such obligations, the court will deny it.
This judgment was authored by the Chief Justice of India (CJI) Dr D.Y. Chandrachud, and was written on behalf of his colleagues on the Bench— Justices J.B. Pardiwala and Manoj Misra.
It is the same trio of judges that has now rejected another writ petition seeking directions for the Indian government "to cancel any existing licences and halt the grant of new licences or permissions, to various companies in India, for export of arms and other military equipment to Israel, during Israel's war in Gaza".
In this case, the judges took a different route to achieve the end goal— ensuring that the commercial interest of the government and corporations is not hindered, much like the case referred to above.
Whether it is a coincidence that these three judges were on the Bench or are they ones dealing with matters of 'international law' at India's Supreme Court is not clear. The judges' roster does not include 'international law' as a subject matter for the CJI, and the subject matters of the other two judges are not even listed. Curiously, 'international law' is not a subject matter for any of the judges mentioned in the roster.
On August 17, 2024, a group of former civil servants, scholars, activists and experts in fields such as international relations, human rights and policy analysis filed a writ petition in the Supreme Court demanding the cancellation of licences to companies for exporting arms to Israel. Their arguments rested on a perceived violation of India's international law obligation.
The petition was not novel. Similar arguments have already been made, successful and unsuccessfully, before international courts and domestic courts of other countries.
The crux of all the arguments is this— Israel's actions in Gaza, since October 2023, might amount to a violation of international law, particularly of international humanitarian law, international criminal law and international human rights law.
“Curiously, 'international law' is not a subject matter for any of the judges mentioned in the roster.
The petition of more than 400 pages was dismissed in a four-page-judgment, the author of which is not mentioned. The judgment found the petition unmaintainable because of Article 73 of the Constitution.
It notes 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".
It further refers to Article 253 to say that only the Parliament has the power to make laws for implementing any treaty. The judgment notes that these two Articles create a 'fundamental objection' to the maintainability of the petition.
This piece argues that the court erred in concluding so. This is because Article 73 is not about 'foreign affairs'. The term does not even appear in the Article. In fact, it is not even a legal term, but rather a term of international relations or diplomacy.
Article 73, for the purpose of the judgment and this piece, states that the "Executive" power of the Union shall extend to the "exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty on the agreement".
While this Article is relevant to the discussion of the incorporation of international law in India's domestic legal framework, it is not clear how it is relevant to the non-maintainability of the present case.
Further, after quoting Article 253, the court again erroneously interprets it by noting that "(t)here is a presumption that international law is a part and parcel of the law of the nations unless the application of a principle of international law is excluded expressly or by necessary implication by the competent legislature".
This is erroneous because the said Article does not provide any room for exception. Its wording is clear— any treaty to which India is a party can only be implemented in India once the Parliament has made a law in that regard.
Sadly, post-Independence, the judges of the Supreme Court of India continued following the British way of incorporation of international law, i.e., what is not opposed is accepted. The court is yet to be decolonised in this regard. Many judgments later, its erroneous interpretation has now become the norm, with support from academicians.
After noting Articles 73 and 253 as the "fundamental objections" to the maintainability of the petition, the judgment pivots towards what it calls "the basic issue".
This issue 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 equipment to Israel?"
It then lists out three reasons why the answer to the question, to quote from the judgment, "must be in the negative".
These reasons are, firstly, that any grant of relief will be tantamount to adjudicating on Israel's responsibility for its actions in Gaza; secondly, that any injunctive relief would result in violation of international agreements by the Indian companies; and finally, that action, if any, can be taken by the Union government. Let us unpack the reasons one by one.
Israel's responsibility
The court's argument that for it "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 levelled by the petitioners against the State of Israel" is grossly wrong.
If nothing else, the court could have looked at the Internation Court of Justice (ICJ)'s decision in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa versus Israel), a copy of which was also included in the petition.
“The petition of more than 400 pages was dismissed in a four-page-judgment, the author of which is not mentioned.
In that case, South Africa had requested the ICJ to order Israel, as an interim measure, to fulfil its obligations under the Genocide Convention to "prevent genocide" of Palestinian people in Gaza.
In its decision, the ICJ did not necessarily determine that Israel's acts violated the Genocide Convention, as claimed by South Africa, but still ruled that Israel should prevent the commission of genocide in Gaza.
The current case before the Supreme Court was not even about the determination of Israel's actions. Rather, it was about India's actions. And yes, to say that India's actions might amount to abetting international crimes means that international crimes are happening.
But the court could have assumed the likelihood of such crimes or should have referred to the plethora of evidence made available to it by the petitioners where international organisations have alleged that such crimes are being committed by Israel.
Instead, the court skirted its way around the question by deferring to the government, the same government whose actions it was supposed to judge. In Paragraph 9 of the judgment, it notes: "In taking an appropriate decision, the Government bears into account all relevant considerations including the commitments of the nation at the international level."
This then raises the following questions: did the government assess Israel's actions? And if after the assessment, the answer was that yes, Israel has violated international law, how did the government circumvent that conclusion while issuing licences?
However, if the answer was no, how does that fit in with the government's stance taken at the United Nations during various resolutions regarding the conflict? The approach taken by the Supreme Court must be considered negative for more than one reason.
Firstly, now that the petition has been rejected, we do not know if the government actually did an assessment of Israel's actions. What is more frustrating is that the judgment also does not note the government's stance, it simply assumes that the government must have done an assessment.
Secondly, because the judgment keeps us in a position of ignorance— we do not know if the assessment, if any, is accurate. After all, the government has often been found lacking on questions of human rights.
Take the Genocide Convention, for example. India was one of the first countries to move a resolution at the UN for a convention on genocide. This was in 1946, even before the country was an independent nation. On India's recommendation, voiced through M.C. Chagla, the resolution asked States to enact legislation for the prevention and punishment of genocide.
To date, there is no legislation on the Genocide Convention in India! When member of Parliament Avinash Pande asked about this situation in the Parliament in 2016, the Union home ministry replied: "By acceding to the (Genocide) Convention in 1959, India has recognised genocide as an international crime.
"The principles embodied in the convention are part of general international law and therefore already part of the common law of India. The provisions of the Indian Penal Code (IPC), including the procedural law (Criminal Procedure Code or CrPC) provide effective penalties for persons guilty of crime of genocide."
There is plenty wrong in this statement, which the author has highlighted elsewhere. For now, suffice it to say that not only does the word 'genocide' not figure in the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (or the IPC or CrPC), it does not figure in any Union criminal legislation of India.
On violation of international agreements by Indian companies
The court's second reason for rejecting the petition was that the relief sought in the petition would result in a violation of international contracts and agreements entered into by Indian companies.
Here the court changed the very nature of the petition which was not about the responsibility of companies but of the State. It is the Union government that is issuing licences to supply weapons to Israel, specifically the Directorate General of Foreign Trade (DGFT) and the Department of Defence Production (DDP), as per the petition.
“The judgment refers to Article 253 to say that only the Parliament has the power to make laws for implementing any treaty.
Hence, as per international law, responsibility, if any, for violation of international law will be on India and not on the individual companies. The reason for this is in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).
The assessment of India's responsibility under ARSIWA will require another post. Here, let us limit the discussion to how India might be responsible for the supply of weapons by companies to Israel.
Article 16 of ARSIWA provides that a "State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so" if (it) does so with "knowledge of the circumstances" of the internationally wrongful act; and if the act would be internationally wrongful if committed by itself. Let us unpack this.
The Article talks about a State aiding or assisting, while the petition mentions private companies (in addition to state-owned companies) supplying weapons. So why should the State be responsible for the acts of private companies? This is because private companies are not performing any function but functions that are generally performed by the State. Here, Article 5 of ARSIWA becomes relevant.
It states that: "The conduct of a person or entity which is not an organ of the State under Article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance."
This Article talks about a person or 'entity'. The private companies mentioned in the petition are covered under the term 'entity'. As the International Law Commission explains in its commentary to Article 5 of ARSIWA, 'entity' includes bodies that "may be empowered by the law of a State to exercise elements of governmental authority" and "is empowered by the law of the State to exercise functions of a public character normally exercised by State organs".
The supply of weapons is one such example of a function of public character, and that is why it is controlled by government departments like the DGFT and DDP. Therefore, the conduct of private companies (entities) shall be considered an act of the State, i.e., of the government of India, and thus will be attributable to India for the purposes of Article 16 of ARSIWA.
The two conditions mentioned in Article 16 provide that while aiding another State (arguably Israel) in the commission of internationally wrongful acts, the aider (arguably India) should have the knowledge of the circumstances of the act and that if the act is committed by the aider independently, that too shall amount to an internationally wrongful act.
This requirement takes us to the points we discussed earlier about the assessment of Israel's responsibility by the Indian government. Now, because the petition has been dismissed, we do not know if the government had the knowledge required under this Article. Also, an argument can be made that if India was doing what Israel is doing in Gaza, it would have amounted to a violation of international law.
Clean chit to government and 'law–policy' dichotomy
The third reason the court rejected the petition was that 'the government knows better'. This is not an exaggeration because the case was against the Union government and the court gave it a clean chit saying that the government knew what it was doing.
Regarding suspension of licence, the court said that "[w]hether 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, geopolitical and other interests of the nation in the conduct of international relations".
Notice how legal considerations are totally absent in this sentence— economic and geopolitical considerations are mentioned, even international relations find a mention, but not international law.
Moreover, here again, the court misses the point. The question is not who can make such decisions— it is clear that only the Union government, being the representative of India, can make such decisions. The question rather was whether the decision taken after such considerations was right or wrong.
The biggest blunder the court made in this case was looking at the petition from the perspective of foreign affairs and foreign policy, and not from the lens of international law.
“Sadly, post-Independence, the judges of the Supreme Court of India continued following the British way of incorporation of international law, i.e., what is not opposed is accepted.
Perhaps it is appropriate to refer to Ronald Dworkin here to understand the distinction between law (Dworkin refers to it as principle) and policy.
In The Model of Rules Dworkin writes: "I call a 'policy' that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community… I call a 'principle' a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality."
The judgment reflects that the court has completely ceded international law space to the State, or is ignorant of international law. In either case, it shows a lack of appreciation of international legal rules by the court.
The court's own history with corporate–human conflict should have reminded it of its obligations towards the latter. Its controversial treatment of the Bhopal gas tragedy, another corporate–human conflict from 40 years ago, should have served as a guide. Because of the court's misadventures, the victims of that disaster are still looking for fair compensation.
Moreover, the court's rejection of the petition is a lost opportunity. The petition was a perfect opportunity for the court to assess India's role, complicit or otherwise, in the ongoing war.
“The judgment reflects that the court has completely ceded international law space to the State, or is ignorant of international law.
Its decision leaves India susceptible to allegations of abetting genocide and being taken before the ICJ for the same. It is improbable but not impossible. On a similar issue— of supply of weapons to Israel— Nicaragua took Germany to the ICJ earlier this year.
This petition provided the court with the opportunity for a reality check. If the court had assessed the application in depth, it might have come out with a conclusion determining no liability for the government.
And if it had decided that by continuing to supply weapons to Israel, India is violating international law, that would have helped the government in halting the violation of international law.
