Abstract: Judiciary is a body in which independence, transparency and efficiency are essential characteristics. But, very often these characteristics get undermined by the political forces. This research paper tries to analyse the situation in Israel regarding the recent proposed judicial reforms and compares it with the Indian mechanism of judicial appointments. The paper has sought to explain the various aspects of the proposed reforms in Israel and compare it as well as the structure and process of judicial appointments in both these countries. The idea of comparing the two cases, that is of India and Israel is to make it easier to understand the current situation in Israel and some of the steps that Israel can learn and adopt from the Indian mechanism. A mechanism involves a mechanic and a machine. In context to judiciary, the mechanic is the judge and the machine is the judiciary.
Keywords: judicial reform, the appointment of judges, transparency, judicial revolution
Introduction: The judiciary is one of the most important pillars for a just and democratic society. When the judiciary itself is undermined, the expectations for justice in society may come down and the confidence in the judiciary may also come down especially when governments are given a larger say. Though governments may represent the views and the support of the people, the problem is the misuse of this power for political ambitions. Thus, it is this possible misuse to fulfil the political aspirations that brings about fear when the government tries its ways to bring the judiciary to favour it. The judiciary is supposed to be an independent body which exercises its power against the unjust decisions of the government. The relevance of comparing the judiciary in Israel and the recent judicial reform with the Indian mechanism is primarily because the judiciary in both these countries have a quite similar process of appointments and structure and both these countries have had the judicial appointments questioned. Apart from this the judiciaries in both these countries can learn from each other and adopt the positives that can bring a judicial reform that can help maintain the independence of the judiciary. Though Israel has tried to put some of this into action it failed, given the public outrage.
Research methodology: This paper is analytical in nature and the research is based on secondary sources such as websites and books to dive deep into the issue of judicial appointments and reforms in Israel and India.
Review of literature: As stated by former justice Markandey Katju in his book, ‘appointment of upright and competent people, particularly in the higher judiciary is a sine qua non for a judiciary enjoying the confidence of the people’.[1] Thus, the idea of having the judges who are in favour of the government in certain cases appointed either to the higher judiciary or as the chief justice of the concerned court would involve politics in the judicial appointments. By ensuring a non-political judiciary the judiciary’s independence as an important pillar of any democratic structure would be maintained.
The recent proposal for judicial reform in Israel
Recently, the former Israeli prime minister lead right-wing coalition won a majority of seats in the 120-seat parliament, which is also called Knesset.[2] Benjamin Netanyahu, the former prime minster who led the coalition is a controversial figure as he still is on trial for corruption charges.[3] Though he denies these allegations, the question still is serious and is relevant in context to the recent controversy which can have implications for the Israeli judiciary.
The Israeli government has been pushing for radical reforms that can seriously impact the country’s judiciary. The new proposed reforms suggest to put a bar on the Israeli judiciary’s power to rule against the executive as well as the legislature, which are foundations for any fair and transparent body. The proposed changes would give the coalition the larger say unlike earlier, where a panel was set up for the selection of judges, requiring politicians and judges who sit on it to agree on appointments.[4]
However, a larger question can be put forth regarding the proposed changes. The question would be regarding the method and time in which this proposal has been put forth. The proposed change in which the coalition government would have a greater say, could be deleterious to the democratic structure of checks and balances given the fact that Israel already has a fragile structure of checks and balances. In my opinion, if the coalition government is given the sway, the reform could have a serious impact on the kind of judges the judiciary in Israel would have. This is because the coalition government in Israel which currently helped Netanyahu come to power are extremist right-wing and radical groups.
The Indian context in comparison with Israel
Similarly, the recent tussle between the judiciary and the parliament in India posed a similar question of the judges having the larger say in selecting their colleagues which as the government claims need to change. Both the law minister Kiren Rijiju as well as the vice president of India Jagdeep Dhankar voiced their opinions on the judiciary. The law minister said that the people of the country are unhappy with the collegium system and according to the spirit of the constitution, the job to appoint judges is of the government.[5]
Israel has had the Supreme Court since 1948 and has had judges bring back judges to the judiciary. This is similar to the collegium system in India. Yet, now both countries have something to say against this system in which judges bring back their own colleagues. There may no political parties or forces involved yet the problem may or may not lie inside the judiciary since that remains unseen. India has had the Supreme Court since 1950 which also means that the Indian Supreme Court is nearly as old as the Israeli Supreme Court. The Supreme Court of India has played an important role since its inception, though during this timeline, that is from the time of its inception until now there have been many interventions by the government to support its political will.
Indian mechanism of judicial appointments
The Indian mechanism is based on the collegium system of appointments which isn’t based on any acts of the parliament or any provision, but rather is a result of an evolution through Supreme Court judgments. Three such famous judgements are:
- First judges case (1981) in which the Supreme Court declared the primacy of the chief justice of India’s recommendation on judicial appointments and transfers can be refused for cogent reasons. The judgment gave the executive the sway over judiciary in judicial appoints until the 1993 second judges case. [6]
- Second Judges case (1993) in which the Supreme Court in this decision introduced the collegium system, holding that “consultation” meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the supreme court.[7]
- Third judges case (1998) in which the supreme court on President’s reference expanded the collegium to a five-member body, comprising the CJI and four of his senior most colleagues. [8]
- Fourth judges case (2015) which is the 4th such case.
However, besides this there had been an act that changed this system until the Supreme Court judgement when the collegium system was brought back. In August 2014, the Indian parliament passed the constitution (99th amendment) act, 2014 along with the NJAC act, 2014, providing for the creation of an independent commission to appoint judges to replace the collegium system.
In 2015, however, the Supreme Court declared the 99th constitutional amendment, 2014 and the NJAC act, 2014 as unconstitutional and null and void.
The NJAC (national judicial appointments commission) comprised of:
- The chief justice of India as the ex officio chairperson
- Two senior most Supreme Court judges as ex officio members
- The union minister of law and justice as ex officio member
- Two eminent persons from civil society (to be nominated by a committee consisting of the chief justice of India, prime minister of India and the leader of opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)
The judgment declaring the constitutional amendment and the NJAC act unconstitutional, null and void was due to the plea in 2015 by the Supreme Court advocates-on-record association challenging the provisions of what were now laws.
Israel mechanism of judicial appointments
The Supreme Court of Israel as stated earlier has a similar system of selecting judges like India. Judicial overreach has often been cited as a concern. The Supreme Court of Israel was very careful to not infringe on the roles of the legislature.
Judges are selected and promoted by the judges nomination committee, headed by the minister of justice and composed of nine members; three Supreme Court judges, two ministers, two members of knesset and two representatives of the Israeli bar association. Upon nomination, the president of the state formally appoints the judges.
The Supreme Court of Israel was very careful to not infringe on the roles of the legislature.
Judge Aaron Barak, a prominent judge, who served as the judge of the Israeli Supreme Court from 1978 until 1995 after which he served as the chief justice of the Israeli Supreme Court from 1995 until 2006.[9] His tenure is often linked to judicial revolution by the judiciary. The primary reason behind this is that during his tenure the scope of action of the Supreme Court expanded exponentially, to include almost unlimited judicial review power. He views himself and the court as having at least equal authority to the Knesset or the Israeli parliament to enacting Israeli laws.
Structure of the judiciary in Israel
Israel does not have a constitution but has certain laws. According to the basic law the judiciary which is the system of the general law courts (the regular courts) is comprised of three instances based on hierarchy:
- The Supreme Court
- District courts
- Magistrate courts
Apart from this there are many specialised courts as well, such as:
- Religious courts
- Labour courts
- Military courts
- Family courts
India has a very similar structure of judiciary, except that there are more subdivisions in the Indian structure given the size and diversity of the country as a whole in comparison to Israel.
Interference by the government
The moment the judiciary begins to expand its exercise of power, the political forces begin to get frustrated and they begin to interfere and try out their ways to bring the judiciary in their favour. This expansion of power is also called judicial overreach. But some give it the term ‘judicial revolution’ whenever the judiciary breaks the convention and exercises its power to its fullest of its capacity as an independent body to restrict the legislature and at times creates ambiguity over the point at which the power needs restraint.
The interference of the government in judiciary is not in direct ways but in indirect ways in the form of acts and constitutional amendments which could affect the judiciary the same way it did as stated earlier in the 99th constitutional amendment, 2014 and the NJAC (national judicial appointment committee) act, 2014.
Judicial reform, judicial activism and judicial revolution
While the three terms possibly depict a modernised and efficient judiciary that probably would fit a Utopian society, it is not so. This is because both these pillars, that is the judiciary and the legislature see this in a different way. For the judiciary, the idea of breaking the convention to become an activist, for instance by accepting writ petitions, to revolutionise the judiciary by making it more efficient and by expanding its reach and using its power to the best of its ability. However, generally for the legislature, the idea of judicial revolution does not seem as pleasing as possibly having the court to play the role of an activist to ensure justice in the society. For the courts, the idea of judicial reform does not seem pleasing given the fact the it is the legislature itself that would bring into existence acts and also constitutional amendments that would affect the court in a way and could possibly make the courts favourable to the government. This, as stated earlier, would be in indirect ways, by interfering with the judicial appointments. The judges who have dissented in cases where the majority held the government liable could be in the minds of the government and would possibly be seen as favourable to the government.
One such example is the appointment of A.N Ray as the chief justice of the Supreme Court of India in 1973 by superseding 3 senior judges, justices Jaishankar Manipal Shelat, AN Grover and KS hegde, thus breaking the seniority norm.The supersession was made on the day following the supreme court’s judgment in the Keshavananda Bharati case.
The second supersession took place during the emergency when justice M.H Beg was appointed as the CJI on January 29, 1977, by superseding Justice H.R Khanna.
Loss of public support
The Israeli government was forced to postpone the enforcement of the proposed judicial reform that gave the coalition government the sway. This was due to the public outrage caused by this very idea to reform the judiciary and of the government trying to get itself a pro-government judiciary in indirect ways. There are also doubts regarding whether this is being done to assist prime minister Netanyahu who is still on trial.
Whether the suspicion on Netanyahu proves to be true or not, there would be some repercussions. Some of those would be:
- Strained international relations
- Considerable loss for the coalition parties and the Likud party.
- Judiciary would be affected if the proposed changes are put into effect next month (that is, the month following the date of implementing the proposed judicial reform)
Describing the ‘judicial mechanism’
The Indian judiciary is witness to judicial reforms, judicial activism, judicial revolution, yet the judiciary continues to remain strong, transparent and independent. A ‘mechanism’ involves a machine and a machine. Similarly, the judiciary, which is the machine, has provided the judges, who are the mechanics, with the tools of independence and power (through separation of power) these mechanics use these tools. However, what would happen if a brand owner assumes the position of the mechanics or engages mechanics of the particular brand? The owner would in this case suggest the cost and type of repair that would benefit and would serve the company’s interests.
Similarly, the interference by the government in judiciary would be beneficial more to the government than to the judiciary.
Suggestions
There is a lot which Israel can learn from India. It can learn from the judicial reforms and the NJAC ‘experiment’ and the 99th constitutional amendment which can be useful for Israel, provided, it sought to introduce the proposed judicial reforms with a good intention that doesn’t serve the interests of the government.
The government is already facing protests and public outrage caused the government to postpone the implementation. Despite this, the government is facing a long term problem which cannot be done away with easily. The government must soon consider the opinion of the public and only implement an ‘open’ judicial reform which should be a result of collective support.
The public outrage caused by the proposed judicial reforms by the government could possibly give an edge to the opposition in Israel. The opposition must take note of the situation and consider an alternative to the proposed changes by the incumbent government.
Conclusion
Thus, the judiciary must remain unaffected by political interests and at the same time must be allowed to be reformed by the political forces, provided that these reforms wont diminish the judiciary in any way. Separation of powers must be maintained and the judiciary must remain an independent body.
The judiciary must revolutionise in ways that wont create any ambiguity in terms of the point at which the revolution would be termed as judicial overreach. This judicial overreach is what presses the government to push for the need of judicial reform. There are other ways to revolutionise the judiciary, unlike by judicial overreach. One such way to revolutionise is by the use of technology.
Judicial reforms need to be open minded and must not affect the judiciary in any way. The image of the judiciary is very important in a democratic society. If people have no trust in the judiciary then whom will they resort to for timely justice?
[1] Justice Markandey Katju, Wither Indian Judiciary, pg 59/para 1/section 1 (Bloomsbury India, 2018 edition, published in 2018)
[2] Al Jazeera, Netanyahu and far right allies win Israeli election, (3rd November 2022) https://www.aljazeera.com/news/2022/11/3/netanyahu-and-far-right-declared-winners-in-israeli-elections
[3] Yonet Joseph and Patrick Kingsley, Netanyahu will return with corruption charges unresolved. Here’s where the case stands, New York Times, (3rd November 2022)
https://www.nytimes.com/2022/11/03/world/middleeast/netanyahu-corruption-charges-israel.html
[4] Maayan Lubell, explainer: Israeli judicial reform: what’s it all about?, Reuters, (March 26 2023), https://www.reuters.com/world/middle-east/uproar-over-israel-judicial-changes-whats-it-all-about-2023-02-13/
[5] Express news service, collegium system opaque, govt cant be silent forever, says Rijiju, Indian express, (November 6 2022), https://indianexpress.com/article/cities/mumbai/collegium-system-opaque-judiciary-enter-executives-domain-law-minister-kiren-rijiju-8251336/
[6] S.P Gupta v. Union of India, W.P (civil) 274 of 1981 (AIR 1982 SC 149)
[7] Supreme Court advocates on record vs union of India W.P (civil) 1303 of 1987 (AIR 1982 SC 149)
[8] under article 143(1) of the constitution.. vs unknown (AIR 1999 SC 1)
[9] Jean Pierre Braun, Why I support the 2023 Israeli judicial reform, The times of Israel, (april 9, 2023), https://blogs.timesofisrael.com/why-i-support-the-2023-israeli-judicial-reform-2/
[10] PTI fees, two hours given to justice AN RAY to decide on the chief justice of India post?, India.com, (July 16 2018) https://www.india.com/news/india/two-hours-given-to-justice-a-n-ray-to-decide-on-cji-post-3168783/