By Sanjay Raman Sinha
As rain splashed the streets of Tel Aviv, thousands of people gathered to protest against the Israeli government’s decision to gain control over the judiciary. The demonstrations were part of a nationwide outcry against Prime Minister Benjamin Netanyahu’s coalition government’s major plan to bring basic changes in the judiciary. Many see it as plan to gain control over the reins of the judiciary. In India too, similar accusations have been made against the government.
In Israel, the proposed changes were part of the Netanyahu’s election promise in which he had proposed elected officials instead of “interventionist judges” in the judiciary. His plan envisages power to the Knesset or the Israeli parliament to override any verdict of the judiciary by a majority of a mere 61 votes in the 120-member Knesset. It also plans to jettison the test of “reasonability” by which the apex court had nullified many government decisions. More importantly, the right-wing government wants to install a practice of judicial appointments where it can appoint judges of its own liking.
The Israeli attorney general, appointed by the previous regime, had decried the onslaught against the judiciary and said it was against democratic values and would disturb the system of checks and balances.
If this scenario sounds familiar, then recall the Indian situation. Israel is at its 75th year of Independence; India, its 76th. Both countries have rightist governments with a conservative agenda.
In Israel, the Netanyahu government wants to scrap the judicial verdict which said that Israeli outposts in Palestine land were illegal. It also wants to curb socialist reforms and pro-LGBTQ decisions. In India, the government wants to be an “active and participative” stakeholder in the judicial dispensation. In recent times, the Indian government has sharpened its attack on the judiciary and questioned the collegium system of recruiting judges. It wants to have a greater say in the recruitment process. Judges’ appointment is a thorny issue and the government is often accused of stymieing judicial appointees’ recommendations.
However, in India, the acrimony is more subdued and manifests itself as a pressure tactic by the government to get the best bargain in judges’ appointment. The judiciary, on its part, is trying to protect its turf fiercely. It has never been easy for the judiciary to work alongside the government or be on an even keel. Over the years, various governments have tried to ride roughshod over the judiciary.
The power play and interventionist policy started from the time of first Prime Minister Jawaharlal Nehru. The seniority criteria in the appointment of chief justice was flouted when Nehru appointed Justice MC Chagla as the chief justice superseding Justice Patanjai Shastri who was the seniormost judge of the Supreme Court then. This caused a strong protest by the apex court judges and the seniority principle was put in place.
Emergency saw the clamping of restrictions, and Prime Minister Indira Gandhi’s vehement efforts to make inroads into the judiciary succeeded for a while. What precipitated this was that in 1971, her election victory was conditionally stayed by the Supreme Court. She retaliated by imposing the Emergency. The appointment of Justice AN Ray as chief justice was one of the most controversial. He superseded three senior judges merely a day after the Court’s decision in the Kesavananda Bharati vs State of Kerala case.
When Gandhi suspended all basic rights during the Emergency, the Court in the ADM Jabalpur vs Shivakant Shukla case supported the government diktat. However, Justice HR Khanna dissented. Following Justice Ray’s retirement, Justice MH Beg was appointed as CJI, superseding the seniormost judge of the Court—Justice Khanna. This was seen as retaliation for Justice Khanna’s strong dissent in the ADM Jabalpur vs Shivakant Shukla case. Between 1966 and 1977, Gandhi played around with the judiciary in a bid to control it.
These examples show how the executive has always been interested in working its way into the judiciary. The Constitution has an inbuilt provision for insulating the judiciary from executive interference. Article 50 states: “The State shall take steps to separate the judiciary from the executive in the public services of the State.’’
Unlike the Comptroller and Auditor General and the Chief Election Commissioner, the president is expected to consult the chief justice of India in matters of appointment of judges of High Courts and the Supreme Court. This insulates judicial appointments in high places from apparent executive interference. Furthermore, the doctrine of separation of powers is also an element of the basic structure.
In 1973, the Kesavananda Bharati case came at a time when the judiciary was facing maximum onslaught from the government. It evolved the basic structure doctrine to safeguard the Constitution. The case is significant for its ruling that the Constitution can be amended, but not the basic structure. Furthermore, judicial review is one of the key elements of judicial supremacy and was defined as an element of the basic structure in the Minerva Mills case (1980).
These verdicts gave power to the judiciary to overturn executive fiats or legislations if they are contrary to the spirit and provisions of the Constitution. Further, Article 13(2) says that the judiciary can review any legislative law made by parliament.
Judicial review, among other things, is seen as an irritant by the government, and when so called judicial overreach happens, a conflict situation arises. This is the genesis of the judiciary-executive clash. In the constitutional scheme of things, judicial review is seen as a form of check and balance and ensures that no arm of the government becomes too strong to disturb the system.
Apart from the Constitution, judicial decrees have created a strong bulwark to protect the judiciary. This includes the collegium system as developed by the Three Judges’ cases. The government can amend the Constitution by introducing a Bill in either House. The Bill must then be passed in each House by a majority of the total membership and not less than two-thirds of the members of that House present and voting. This means that either the government has an overwhelming majority in both Houses or manages to convince the Opposition to take part in the amendment process.
However, even if the executive wants to change the Constitution by means of a legislation, the judicial review factor can be invoked and governmental action be tested on the touchstone of the Constitution. If the amendment is found to be not in consonance with the basic structure, then judicial wisdom prevails and the Court can strike down the amendment.
However, if the government decides to rewrite the Constitution, then a new constituent assembly needs to be summoned. This is a grey area and fraught with dangerous possibilities.
India is still working under the civilised norms of constitutional democracy, and checks and balances at the parliamentary and judiciary levels to ensure that the boat isn’t rocked.
In that sense, the Israel situation will be watched closely by India too.