Legal Dimensions of India’s Defence Modernization: Challenges, Strategic Shifts & Case

Recent legal developments—from procurement litigation to Supreme Court interventions in national security matters—underscore the urgency of a robust legal framework that evolves with India’s strategic objectives.

1. Defence Procurement and the Judiciary: The Rafale Case & Beyond

Rafale Fighter Jet Deal – ML Sharma v. Union of India, (2019) 3 SCC 186

The Rafale controversy prompted the Supreme Court to examine defence procurement transparency and pricing. Although the court ultimately upheld the government’s discretion, it clarified the scope of judicial review in defence contracts:

"Contracts involving national security are not open to judicial scrutiny unless there is clear evidence of mala fide or procedural irregularity." – SC in ML Sharma v. Union of India

The judgment reaffirmed that while courts cannot micromanage defence procurement, transparency and procedural fairness are non-negotiable.

2. Strategic Partnerships & Sovereignty: Legal Risks in Tech Transfers

India’s increasing reliance on foreign defence partnerships—notably with the US (COMCASA, BECA), France, and Israel—has raised legal concerns related to:

• End-use monitoring clauses that may affect sovereignty.

• Licensing and intellectual property limitations in co-produced tech.

• Data localization and cybersecurity risks, especially under COMCASA.

A relevant legal reference is the Delhi High Court ruling in Tata Sons Pvt. Ltd. v. Union of India (2021), where it was observed that strategic partnerships involving sensitive data must be subject to adequate data protection norms under Indian law.

3. Cybersecurity and Surveillance: A Legal Grey Zone

India's defence modernization increasingly involves AI, cyber warfare, and digital surveillance. However, there is currently no standalone legislation governing cyber operations by defence forces, raising concerns over legality, oversight, and accountability.

Pegasus Spyware Allegations – Manohar Lal Sharma v. Union of India, (2021)

In this case, the Supreme Court created a Technical Committee to investigate surveillance allegations using Pegasus spyware. The Court emphasized:

"National security cannot be a blanket justification for withholding information, especially when fundamental rights are at stake." – SC in Pegasus Case Order, 2021

This case underscores the need for statutory limits on surveillance, even in military and strategic contexts.

4. Emerging Technologies & IHL: Autonomous Weapons and AI Ethics

India has begun exploring autonomous weapon systems (AWS), facial recognition for border security, and AI-driven military analytics. While these technologies enhance efficiency, they challenge International Humanitarian Law (IHL) and domestic constitutional norms.

Legal Concerns:

• Who is legally responsible for actions taken by autonomous systems?

• How does India align with Article 36 of Additional Protocol I of the Geneva Conventions, which mandates legal reviews of new weapons?

Although India is not a party to the Additional Protocols, its ratification of the Geneva Conventions and customary international law impose binding ethical obligations.

5. Human Rights and National Security: Proportionality in Conflict Zones

Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

This landmark case addressed the constitutionality of internet shutdowns in Jammu & Kashmir, imposed for national security reasons.

The Supreme Court held that restrictions on fundamental rights must pass the test of proportionality, even in defence contexts.

This ruling has far-reaching implications for military operations in insurgency-prone areas like the Northeast or Kashmir, reinforcing that constitutional safeguards are not suspended during national security actions.

6. Defence Exports & Dual-Use Technologies: Export Control Laws in Focus

With India targeting ₹35,000 crore in defence exports by 2025, export control law becomes critical. The WMD and Their Delivery Systems (Prohibition of Unlawful Activities) Amendment Act, 2022 introduced penalties for unauthorised export of dual-use items, aligning India closer with the MTCR and Wassenaar Arrangement norms.

However, litigation such as Rajeev Suri v. Union of India (Delhi HC, 2022) raised questions on:

• Adequate environmental clearance for defence testing zones

• Land acquisition processes in strategic manufacturing corridors

These cases show that legal compliance in export-related infrastructure is as important as the export policy itself.

7. What India Needs: Legal Reforms for Strategic Resilience Recommendations:

• Enact a Defence Procurement Act to institutionalize transparency and dispute resolution.

• Introduce a Defence Cybersecurity and Surveillance Act, defining the scope of digital warfare operations.

• Create an Autonomous Weapons Regulation Policy to preempt ethical and legal issues.

• Enhance judicial and parliamentary oversight for strategic partnerships and defence tech contracts.

Conclusion

India’s transformation into a modern military power is no longer just a matter of strategy and capability—it is a test of legal foresight and constitutional fidelity. As India navigates AI warfare, cyber threats, and global defence collaborations, the rule of law must remain central to its strategic doctrine.

Robust legal infrastructure, backed by proactive judicial review and ethical policy-making, will ensure that India’s national security does not come at the cost of democratic values or international legitimacy.

References (APA Style)

• Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

• ML Sharma v. Union of India, (2019) 3 SCC 186.

• Manohar Lal Sharma v. Union of India (Pegasus), (2021).

• Tata Sons Pvt. Ltd. v. Union of India, Delhi HC (2021).

• Geneva Convention Protocol I (1977), Article 36.

• Ministry of Defence. (2020). Defence Acquisition Procedure (DAP) 2020.

• Government of India. (2022). WMD Amendment Act.