Editorial 1:India’s defence exports and humanitarian law

Context

Having India amend its domestic laws would be a better way to strengthen its credibility and assess the international humanitarian law-compliance of countries importing its defence goods

Introduction

The Supreme Court of India, earlier this month, dismissed a public interest litigation (PIL) asking that the central government be directed to stop exporting defence equipment to Israel as Tel Aviv is allegedly committing war crimes in Gaza. The top court refused to intervene, reportedly because foreign policy is not its domain. However, the issue that the PIL raised is a normative one that goes beyond Israel. It must be clearly understood given India’s aspirations to become a major defence exporting nation.

• About defence exports: It is critical to recall that quite a few countries have curbed defence exports to Israel. For instance, a court in the Netherlands ordered the Dutch government to block the export of all F-35 fighter jet parts to Israel.
• The basis of this order is a European Union (EU) regulation, which prohibits military equipment export to a country if there is a clear risk that the recipient country would use such equipment to violate international humanitarian law (IHL).
• Likewise, the United Kingdom government, acting under the Export Control Act, reviewed Israel’s compliance with IHL concerning the ongoing conflict in Gaza.
• Admission of risks: It concluded that there is a clear risk: if certain arms are exported to Israel, they would be used to commit or facilitate serious violations of IHL.

Legal gap

• Lack of an equivalent law: of the U.K.’s Export Control Act or the EU regulations in Indian law requiring an assessment of a country’s compliance with IHL obligations in deciding whether to export defence equipment to such a country.
• The Indian Foreign Trade Act, 1992 (FTA) read with the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) (WMDA) Act, 2005 empowers the central government to regulate the export of designated goods relevant to India for various reasons.
  • These reasons are listed in Sections 3(5) and 2(l) of the WMDA and FTA, respectively.
• The international obligations: In addition to things such as India’s national security, an important factor listed in these sections is India’s “international obligations under any bilateral, multilateral or international treaty, Covenant, Convention”.
• The permission to prohibit: the central government can prohibit the export of defence goods due to India’s international law obligations.
  • This is the closest Indian law gets to connecting the export of defence goods with international law.
• According to India’s domestic law: the central government, unlike in the U.K. and the EU countries, is not under an obligation to review the IHL compliance of the country to which India is exporting defence goods. Thus, the legal gap.

What has been the stand of the Supreme Court

• Filling up the Vacuum: The Supreme Court, in several cases, such as Vishakha vs State of Rajasthan, has not just used international law to enlarge the content of domestic law but has also judicially incorporated international law to fill the vacuum created by the absence of domestic law on the subject.

 

International law 

• Arms Trade Treaty (ATT): aimed at regulating international trade in conventional arms. Article 6(3) of the ATT bars a country from supplying conventional arms if it has the “knowledge” that these arms “would be used” to inter alia commit war crimes.
• Article 7 obligates states: to assess whether the conventional arms they export would be used by the importing country to commit or facilitate a serious violation of IHL. 
• Interestingly, India is not a signatory to this treaty.
  • As a result, this treaty is not binding on India and cannot be judicially incorporated,
  • though some provisions of the ATT reflect customary international law. 

The obligation

• Common Article 1 of the Geneva Conventions, which is binding on India, obligates all states ‘to respect and to ensure respect for’ IHL.
• Imposing obligations: As it was held by the International Court of Justice in Nicaragua vs United States, this provision imposes a negative obligation on states.
  • Thus, countries are under obligation not to supply weapons to a country ‘if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions’.
  • Scholars argue that the certainty required for the exporting state that its weapons will be used by the importing state to commit violations of the Geneva Conventions is quite high. 

Conclusion

When India’s domestic laws, the WMDA and the FTA, are read in light of India’s IHL obligations, a clear duty arises not to supply weapons to a country that would use them to breach its IHL obligations. But rather than deriving this obligation using international law, it would be better for India to amend the WMDA and the FTA, This approach will explicitly evaluate the compliance of countries importing Indian defense goods with International Humanitarian Law (IHL). By doing so, India can enhance its credibility as a responsible defence-exporting nation.

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Editorial 2: Women on the margins of the political sphere in J&K

Context

The political representation of women is an exception and not a norm in J&K.

Introduction

As Jammu and Kashmir (J&K) enters the second phase of the Assembly elections on September 25, the persistent marginalisation of women in the political sphere demands critical scrutiny.

Data sets w.r.t. Women representation

• Minimal political representation  Despite women comprising almost 48% of the electorate in the Union Territory, their political representation has remained poor.
• Limited women candidates: In the 2014 J&K Assembly elections, only 3.6% of the total candidates were women. In the 2024 elections, there were only nine women out of the 219 candidates in the first phase.
• Dominancy of Patriarchy: The political landscape is deeply rooted in J&K’s patriarchal social structure that views public and political life as male-dominated.
• Safety and Political instability: concerns in a volatile atmosphere have kept women at the margins. 

Efforts towards Women inclusion

• Raising hopes for women representation: While there have been legal and advocacy efforts in expanding the representation of women, such as granting 33% reservation to women in the J&K Assembly,
  • they often fall short in addressing the deep-seated cultural and institutional barriers that limit women’s political engagement.
• Ignoring the women’s political participation: The two main political parties in the region — the National Conference and the People’s Democratic Party — have historically sidelined women.
• Lack of political support from women leaders: Even female leaders, including former Chief Minister Mehbooba Mufti, have failed to effect the needed transformation, as they often conform to the male-dominated political structures themselves.
• Women as a dummy representative: When women are fielded as candidates, it is often in constituencies considered unwinnable or in token positions within party structures.
  • In the 2020 District Development Council elections, though 33% of the seats were reserved for women, actual representation barely crossed 10%.

No women-centric policies

Further, there are no dedicated women-centric policies.

• Lack of inclusive institutions empowering women: Neither the major political parties nor the local governance institutions have implemented policies that specifically address the economic, social, and political empowerment of women,
  • such as reserving seats for women in legislative bodies
  • introducing gender-sensitive economic schemes
  • supporting women entrepreneurs in J&K
• Gender Gaps: Despite the Improvement in women’s literacy in J&K, over time, the gender gap remains significant — 66% of women are literate compared to 84% of men.
• No employment- No empowerment: women’s labour force participation is abysmal, hovering around 25%.
• Lack of dedicated funds: The absence of gender-responsive budgeting, economic empowerment initiatives, or electoral reforms contribute to the ongoing political exclusion of women.

Cruciality of Elections

• The issue non-representation: Elections are a mechanism to ensure that all sections of society are represented, but when half the population is under-represented, the very foundation of democracy is undermined.
• Patriarchal boost: In J&K, where women’s participation is notably low, the absence of female voices results in policies that fail to comprehensively address gender disparities, further entrenching patriarchal norms.
• Need for democratic governance: The formulation and implementation of incisive, women-centric policies are imperative for ensuring equitable representation in democratic governance. 

Way Forward

• Making women’s perspectives integral: to peace-building, education, healthcare, and employment will ensure that their voices are heard and encourage political involvement.
• Education and Healcare needs: Providing free childcare, healthcare benefits, and family support policies for female politicians would ease the burden of familial responsibilities, enabling more women to enter and stay in politics.
• A push for political quotas: in J&K, as implemented in post-conflict Rwanda where 60% of parliamentarians today are women, including electoral reforms and capacity-building initiatives for women, could substantially alter the status quo.

Conclusion

After the dilution of Article 370 in J&K in 2019, the UT came under the scope of Central laws, including the National Policy for Empowerment of Women (2001). There is a strong foundation now to support women in participating more actively in politics. These laws offer a chance to not only boost women’s involvement in decision-making but also to secure their rights and dignity. By focusing on political participation, we can empower women to shape their own futures and create a more inclusive society in J&K.  Thus, women representation must be given a boost to ensure growth and development ensuring a prosperous democracy.