Lessons For India From Israel’s Judicial Reforms

Lessons For India From Israel’s Judicial Reforms

With its historical judicial overreach and murmurs of judicial reform, India is likely to follow Israel’s path. Thus, it is essential to understand the similarities and differences between Indian and American situations. To address this crisis, Benjamin Netanyahu introduced some judicial reforms.

There are three judges, two bar association representatives, two parliament members, and two ministers deciding to appoint Israeli judges rather than self-referential closed-door collegiums.

Seven members are required for appointments in the Israeli judicial system, but the Israeli bar associations lean heavily toward the Left. The Left cannot stall a blatantly partisan work if it wins parliament. 

A prominent example of this was the previous Left-leaning government appointing 61 judges in just one sitting – many of whom were perceived as Left-wing political hacks – showing the total conformity of views among the three judges, two bar association members, two parliament members, and two government ministers.

Conversely, the Left exercises a de-facto veto every time, using its five-person control over the judiciary and bar association. It became untenable once activist judges like Aharon Barak introduced moralistic interpretations into personal and private laws, allowing judges to make their own decisions.

As in many other cases, this direction is similar to how the Supreme Court of India has different rulings from its benches with diametrically opposite opinions. 

A law is a law due to its consistency of application, not because it needs to be consistent. Consistency robs the law of its legitimacy and makes it authoritative. Since the Left has captured the humanities globally, the reforms proposed government appointments for most judicial positions. 

Furthermore, it established legislative supremacy as a principle. It follows that unelected people cannot ignore laws that a majority of the country wishes based on fundamental law (similar to the Indian basic structure doctrine, under which any judge can declare that some basic structure, based on their preferences, has been violated).

The Supreme Court must sit and vote to overturn any judgement related to the fundamental law with an 80 per cent majority vote amongst the judges. Consider that an overturn of legislation would require a minimum vote of a full bench. 

A minimum voting percentage is also required to overturn judgments. Another argument was over legal advisors – deputies to ministers who advise them.

In this case, an elected minister’s hands were tied by unelected apparatchiks, who could effectively veto the decisions made by elected officials. India is experiencing the same debate as the West regarding consultation versus compulsion. 

For example, while the Constitution specifies that the cabinet consults with the Supreme Court about appointing judges, the court interpreted consultation as a compulsion – that the government must accept whatever it recommends.

There was a judicial coup behind the collegium, turning consultation into compulsion, analogous to when an advisor becomes a minister without realizing it. 

On the other hand, the two clauses seemed problematic at first sight, but they are accessible from a context point of view. It was stated that the Israeli parliament could overturn any judgement by a simple majority of just one vote. 

Since Indians are used to majority governments, this would seem unfathomable to us. This includes the governments between 1977 and 1980 and those between 1989 and 2014.

Israeli history has never witnessed a single-party majority. There has been a coalition government in every Israeli government – very often, one-seat majorities in parliament in extremely tight coalitions. 

The Constitution would make it asymmetric that a majority of one in the legislature would overturn a judgement, while an 80 per cent majority would overturn a law.

However, in contrast to the ideological stability of the Supreme Court and bar association, the asymmetric instability of parliament is natural in the Israeli context. 

As well as the reasonable requirement, it was deemed problematic – that is, judges would still have to prove that the laws they struck down were good without specifying what was fair. Again, this seemed arbitrary, but it was about providing balance to a severe asymmetry. 

In Israel, judicial activists spearheaded a loose basic law framework, similar to our fundamental structure doctrine, in which each judge decided what a fundamental law was.

The parliament was being given a similarly arbitrary mirror check and balance. 

Overall, we have seen that these reforms were eminently reasonable and very important.

Despite this, the Left decontextualized these arguments by demeaning them and portraying them as though these reforms represented some major constitutional coup in any given country. 

As a result, tech companies began to leave Israel in protest, causing a problem. Israel’s technology companies tend to lean left and are headquartered in Silicon Valley.

Having weaponized and politicized their investments in Israel, they, for the first time, adversely affected the Israeli economy. This resulted in a sustained campaign of lying and misrepresenting, and several cabinet members lost their jobs.

Demonstrations began when the defence minister was sacked. Cabinet ministers who diverge from their colleagues indicate weaknesses in the cabinet. There was a moment the Left had been waiting for, and now was their chance to show their cards. 

The Indian situation can be viewed as a teaching tool in many ways. A few thoughts about tech companies becoming weaponized at some point, but also about how a drop of blood among sharks is dangerous.

Throughout the farmers’ protests or the Shaheen Bagh protests, our current government continually shows us that it lacks spine, all of which erupted in violence. 

That is precisely what happened here, with even the police and diplomatic service striking. Whenever we decide to reform our judiciary, which may be the most meaningful reform our republic has seen, this will be the playbook we will be put up against. Observe and analyze the events in Israel very carefully.