Proposals for judicial overhaul in Israel by the conservative right-wing Netanyahu Government in January 2023 have shaken the country, and are being termed as the ‘end of democracy’ with mounting protests continuing for over 16 weeks. The changes, based on the claim that the judiciary has taken too much power for itself and is not a representative body, will have significant consequences for the country. The Government has proposed that the constitution of the judicial selection committee be changed to give the government a majority – which effectively allows government to choose judges, including the president. Apart from this, the government wants to restrict the capacity of the judiciary to strike down laws as unconstitutional.
Opponents of the move fear that if the move is implemented, the Government will have unbridled power to target individuals, dissidents and minorities, which cannot be interfered with by the Court. Moreover, the court will be made up of government appointees and will blindly support the State. The explicit dilutions dilutes judicial independence and powers is seen as a determined nullification of the system of checks and balances contemplated by the separation of powers between the Legislature, Executive and Judiciary.
It is important to note that such moves are actively being opposed by the judiciary. The President of the Supreme Court of Israel said that such a move would crush the justice system and undermine Israeli democracy. The Attorney General issued a legal advisory stating that such moves would harm the system of checks and balances that are intrinsic to democracy, and result in the government being given unfettered power. Shockingly, Defence Minister was fired after he sought for a pause on the proposed amendments, at a time when military reservists say they apprehend illegal orders from the government if the courts are unable to interfere. Throughout this process, the public protests against the proposed amendments have been unparalleled, and have increased to lakhs of people on the streets protesting against the plans. Even Israel’s largest trade union called for a general strike, while the leading universities suspended teaching. Due to pressure, Israeli Prime Minister was forced to announce a delay on the changes, despite which, the protests continue.
These proposals reflect, to a large degree, what is seen in a number of authoritarian regimes, including India. This is not surprising. The modern democratic form of government contemplates a so-called separation of powers, where different organs of State are designed to perform checks and balances on each other. Axiomatically, there is perpetual tension between these organs, which include the judiciary, executive and legislature. However, with increasing executive dominance, countries across the globe see forceful dilution of judicial independence, as well as, equally dangerously, capitulation by the judiciary to executive agenda.
In India, from the supersession of dissident judges during the Emergency times, the evolution of judicial primacy in judicial appointments through the three Judges cases that required, the constitutional amendments introducing National Judicial Appointments Commission (NJAC), and the finding of the same to be unconstitutional by the Apex Court– a turbulent history is again taking a turn towards executive dominance, with strong indications of judicial complicity in Executive overreach are visible. Let us look at three models of this complicity. First the manner in which judges are rewarded for pro-State decisions [for example, take Supreme Court Justices Ranjan Gogoi, who was given membership in Rajya Sabha, or Arun Mishra, who was made chairperson of the National Human Rights Commission]. Second, the evasion of constitutional challenges to substantive political actions of the government with immense repercussions -challenges to the Citizenship Amendment Act, the revocation of Article 370, Hijab ban etc, effectively endorsing through avoidance. Thirdly, the manner in which no action is taken by the collegium to enforce the names recommended by it for elevation – there is no need to look further than the failure to elevate Justice Kureshi despite his seniority and expertise, due to his various judgments, including the order directing police custody of current Union Home Minister Amit Shah in 2010 in the Sohrabuddin Sheikh encounter.
In this context, even in Israel, while on one hand, the judicial opposition to the proposed reforms is noteworthy, the significant role played by the Israeli judiciary in giving a farce of legitimacy to the substantive violation by the Israeli government of International law through the occupation of Palestine cannot be ignored. The High Court recently effectively sanctioned the use of new forms of torture when it upheld rules allowing the Israeli Security Agency to use ‘special interrogation means’ in Tbeish v Attorney General. In fact, none of the more than 1000 complaints of torture in the new millennium have resulted in indictments, and the Courts have condoned human rights abuses and extra judicial killings.
Hence, a demand for judicial independence and preservation of separation of powers, cannot, in themselves, save democracy either in Israel or India. To do that, a substantive overhaul of systemic inequality and a mandate of genuine equal citizenship to all is necessary.