Judiciary Crisis in Israel, its similarity to India and Important Lessons

After Israeli PM Benjamin Netanyahu again came to power in December 2022, his decision to overhaul the judiciary has embarked massive protests in Israel. Recently about 5,00,000 Israeli citizens went on strike. The largest Trade Union in Israel has also declared strikes. The value of shekel currency was harmed due to massive strikes. These massive strikes have shocked Israeli society and have increased the fears of a Civil War. These strikes are very massive and include business leaders, Bank Chiefs, Fighter Pilots, Military reservists, Former security commanders etc. These strikes have jeopardizing effects on Israel, for one instance about 70,000 passengers are stuck due to the aviation industry participating in protests.

What is the reason for massive Strikes?

Well, as stated above the controversial proposal to change the structure of the Israeli Judiciary by the current right-wing government led by Netanyahu has caused massive Unrest. The firing of Differing Israeli Defence Minister Galant by Netanyahu also fueled the protests. The controversial reforms were first suggested in January by Israeli Justice Minister Yariv Levin, who is a close associate of PM Netanyahu.

The Judicial Overhaul proposed 5 major changes in the Israeli Judicial system:

1. Supreme Court Judgements if they are not unanimous can be overridden by Knesset (Israeli Parliament) by a simple majority. In this case, it would mean 61 members out of 120 in Knesset can overrule the SC judgement. And by simple logic, the government has to have a majority in Knesset which means that government can overrule any Supreme Court judgements.
2. This overhaul will end the “test of reasonability” (similar to the Basic Structure doctrine followed by Indian courts) which the apex court had previously used to cancel Knesset decisions.
3. More power will be given to legislators in deciding court judges. Currently, Supreme Court judges are selected from 9 member committee comprising of professionals, justices, bar associations etc.
4. Supreme Court judges will be given an early retirement age. The current age of 70 will be reduced to 67 and this would lead to the immediate resignation of 4 out of 15 Judges.
5. Ministers would be able to appoint their own legal advisors but currently, they are under judiciary and this change will make them lose their binding decisions to just advisory.

Critics question the motives of current judicial reforms. The current PM Netanyahu after facing allegations of corruption in 2019 is now facing trial for the same. It has led to many wondering about the real motives behind the suggested reforms. Many believe that PM Netanyahu will use these changes to escape the charges. The protestors claim that the Israeli PM is undermining democracy and this will lead to a despotic government. Protestors fear that the Government will have greater control of the Judiciary and it will remove the protection of individuals and minorities, further dividing the country. The centrist elite feels that Supreme Court is the last hope for a secular state. Many soldiers fear that they would be given illegal orders and if the Israeli judiciary is weak, they can be tried in the International Court of Justice. This has resulted in protests from military reservists, who are a very crucial part of Israel’s security. The proposed changes would destroy the check and balance system (The principle of government under which powers of the Judiciary, Executive and Legislative are divided).

Netanyahu has fired back by saying that the opposition wants to create anarchy. Supporters claim that these reforms would make Judiciary more accountable and democratic. The government says the Supreme Court is not representative of the country’s diversity. For many years Right wing of Israel has complained that the judiciary is heavily influenced by liberals. The ultra-Orthodox section of Israeli society sees Supreme Court interventions as an obstacle to their way of life.  The government has also complained that the Judiciary is invasive in the functioning of Knesset, and they need to self-check them. They believe the Supreme Court has assigned itself a larger role than courts should have in a democracy. Right-wing sees the court as an antagonist. Many believe the judiciary should pave the way for young blood and old judges should leave their positions.

For India, the tussle between the Judiciary and Executive has its fair share of History. With roots from the 1950s, Golaknath v. State of Punjab to Indira Gandhi’s regime. Recently Union Law Minister Kiren Rijiju’s Statement on the Collegium System, through which Judges of SC and HC are selected brought the tussle to light. Mr Rijiju said that Judges don’t have to face elections but citizens are watching them. Vice-President of India also showed his displeasure with the system. He also said that the public posturing from judicial platforms was not good. All of these comments represent a wider conflict between the Judiciary and Executive over the appointment of judges. For a very long time, the Executive believes that it should have more say in the appointment of Judges. While Judiciary holds the view that it should be independent of the executive and legislature. This creates problems in the smooth functioning of the government mechanism.

Current System for Appointment of Judges

In India, since 1993 the appointment of Judges is based on a collegium system which consists of a CJI and 4 other senior judges. And President after 1993 only has a nominal role of appointing the Judges. The collegium system is not mentioned in the constitution. It is evolved through various SC judgments. From SP Gupta v. Union of India (1981) to the Third Judges case in 1998, which established the MOP for collegium. The Executive exercise its decision only after the suggestions are given by the Collegium. The statement by Law Minister represents the view of the government to change the old system. In 2014 the government brought the NJAC (National Judicial Appointments Commission) Act and the 99^th Amendment, which was struck down by Supreme Court in 2015. The NJAC proposed a balance of Judiciary and Executive in the appointment of judges. It had the Chief Justice of India as its head with two senior judges of SC, a Union law minister and two eminent personalities. SC struck down this Change with the view that Judiciary should be independent, there was a danger of reciprocity and the fear that judges would not be independent. The Collegium system is often criticised for being opaque, slow, irregular workings, the chance of favouritism, under-representation of women, Dalits and Scheduled Caste etc. The government uses pending cases and vacant positions as its base to criticize the collegium. About 40 Million cases are pending in the country out of which 70 thousand are in Supreme Court. 100 vacancies of judges for other courts are yet to be filled, this leads to the pilling up of cases. Hon’ble SC while rejecting the NJAC recognised the flaws in the Collegium system and the need for an efficient, quick and transparent way of appointing the Judges. The issue is far from resolved and it is estimated to rise again.

Lessons for India

While the massive protests in Israel show their democratic consciousness, experts say that Netanyahu’s government is also not planning to back down either. Israel has no written constitution, which leads to a large room for the interpretation of basic laws and in return conflict between the Judiciary and the Executive. Israel is one of the most delicate places on earth with their involvement in the Gaza Strip and West Bank. Any disturbances in the mainland can trigger similar effects in those areas. The country is massively divided on the current issue. India should take the lesson and any move to change the current way should give due recognition to public opinion and the delicate balance of power between the executive and judiciary. If the current system is reformed, fears should be addressed. Only by serious discussion and understanding of each other’s perspective can lead to long-term stability. Arbitrary decisions will strain the relations with Judiciary. Different voices and opinions should be given their due spot. The interest of Indian Democracy should be utmostly prioritized.