Why protests in Israel against judicial reforms should worry India
Given the judicial overreach in India and murmurs of judicial reforms, it is inevitable that what we see in Israel will, in all probability, play out on the streets of Delhi
What’s happening in Israel should worry us all. Given the judicial overreach in India and murmurs of judicial reforms, it is inevitable that what we see in Israel will, in all probability, play out on the streets of Delhi. It is, therefore, important to understand the similarities with and differences from the Indian situation.
This crisis started when Israeli Prime Minister Benjamin Netanyahu decided to introduce a much-needed set of judicial reforms. The need for this had been building up over a period of time, given that the Left-wing had a free run and the Right had little to no basis for representation. Unlike the self-referential closed-door collegium system here, judge selections in Israel are decided by a nine-member committee, comprising three judges, two representatives of the bar association, two members of parliament and two ministers. While appointments require a seven-member majority, the fact is the Israeli judiciary and bar associations lean heavily Left. This means that if the Left wins parliament, the Right has absolutely no way of stalling a blatantly partisan appointment. The most egregious example of this was the previous Left-leaning government appointing 61 judges – many viewed as Left-wing political hacks – in just one sitting, showing the total conformity of views between the three judges, the two bar association members, two parliament members and the two government ministers.
On the other hand, the Left uses its five-member hold over the judiciary and bar association to exercise a de-facto veto every single time. Clearly, this was an untenable situation ever since activist judges like Aharon Barak started introducing moralistic interpretations into personal and private laws, meaning that judges could rule as per their conscience. In many ways, the direction this took was similar to the lack of uniformity in benches of the Supreme Court of India, where each bench can have a diametrically opposite ruling to another bench. This makes a mockery of the law, because the law is the law because of the consistency of application. The law shorn of consistency is tyranny.
To remedy this imbalance, given the global capture of the humanities by the Left, the reforms proposed giving the majority of seats in judicial appointments to the government. Second, it solidified the principle of legislative supremacy. After all, unelected people cannot negate laws that a majority of the country wants citing “basic law” (a concept similar to India’s basic structure doctrine – where any judge can decide that some “basic structure” has been violated to suit his/her predilections). To rectify this, any judgement that was related to the “basic law” would need a sitting of all the judges of the Supreme Court and an 80 per cent majority vote amongst them to overturn the legislation. If you think about it, this is a mirror, where certain minimum voting percentages are required to overturn judgements, and similarly, minimum voting of a full bench would be needed to overturn the legislation.
Then there was the argument over legal advisers — deputed to each minister, whose advice is binding on the minister. This is problematic because a minister is an elected official and yet, his hands were tied by unelected apparatchiks, who could effectively exercise a veto over the people’s elected representatives. In India, this mirrors the consultation versus compulsion debate. For example, while the Constitution states that the cabinet will consult with the Supreme Court over the appointment of judges, the Supreme Court interpreted consultation as a compulsion — that the government was bound to accept whatever it proposed. Essentially, the collegium was a judicial coup, turning consultation into compulsion and that’s very similar to an “advisor” turning into a de facto “minister”.
Two clauses however were problematic at first sight, but not contextually. The first was that a simple majority of just one vote of the Israeli parliament would be able to overturn a judgement. For an Indian, this would seem astonishing given that we are used to majority governments save the governments between 1977 and 1980 and then again from 1989 to 2014. But in Israel, there has never been a single-party majority ever in its history. Every government of Israel has been a coalition – very frequently, extremely tight coalitions with bare one-seat majorities in parliament. Thus, while at first glance, it would seem asymmetric that parliament would need a majority of one to overturn a judgement, a full bench of the Supreme Court would need an 80 per cent majority to overturn the legislation.
Yet, as you can see in the Israeli context, this was natural given the asymmetric instability of parliament contrasted against the ideological stability of the Supreme Court and bar association. Similarly, the “reasonable” requirement was deemed problematic — that is to say, even with an 80 percent majority, the judges would have to show that their striking down of laws was “reasonable” without justifiably defining what reasonability constituted. Again, what seems arbitrary was about bringing balance to a severe asymmetry. As explained before, Israeli judges, spearheaded by judicial activists, had decided on a loose “basic law” framework similar to our “basic structure” doctrine, where each judge could simply decide what a basic law was and wasn’t. This was bringing in a similarly arbitrary mirror check and balance in the hands of parliament.
All up as we’ve seen these reforms were eminently reasonable and indeed crucial. Yet, since the Right in every country is contextual and local and the Left global and universal, it was able to de-contextualise these arguments and present them in a negative light as though these reforms constituted some major constitutional coup. The trouble started when tech companies started pulling out of Israel in protest. Most Israeli tech companies are based in Silicon Valley and all tech companies lean heavily Left. This was the first time they weaponised their existence in the Israeli market and started harming the economy, by weaponising and politicising their investments in Israel. This was then followed by a slow and steady mobilisation of the Left and a sustained campaign of misrepresentation and lies that succeeded in giving several members of the cabinet cold feet. It was the sacking of the defence minister that was the signal for protests to begin. After all, nothing signifies cracks in the cabinet and weakness than a cabinet minister dissenting from his colleagues. This was the moment the Left was waiting for, and they played their card.
There are many lessons for India here. First, how tech companies will at some point be weaponised, but also how weakness in the cabinet is like a drop of blood in a pool full of sharks. Our current government, of course, has shown us time and again that it lacks spine, be it during the farmers’ protests or the Shaheen Bagh protests, all of which metastasised into violence. That’s exactly what happened here, with even the police and diplomatic service going on strike. If and when we decide to reform our judiciary, possibly the most meaningful reforms in the existence of our republic, this will be the playbook that is used against us. So look and study what happened in Israel closely, very closely.
The writer is a senior fellow at the Institute of Peace and Conflict Studies. The views expressed in this article are those of the author and do not represent the stand of this publication. Views expressed are personal.
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