A version of this essay has been published by firstpost.com at https://www.firstpost.com/opinion/collegium-chaos-how-israels-judicial-reforms-find-a-parallel-in-what-india-needs-12118282.html
Israel’s brand-new government headed by Binyamin Netanyahu has embarked on a series of judicial reforms. The root cause is alleged judicial interference in the running of the country. What is interesting to Indians is the striking parallels between what is going on in Israel and India; in fact some of the issues (as well as predictable street protests) may be identical.
So far as I can tell from reading several news reports, and listening to an Economist podcast (“Bibi’s gambit”) on the topic, Netanyahu is proposing to make the following four changes to rein in judicial overreach and excessive activism:
An override clause, so that the Knesset (the Legislature) can pass legislation even if that law is ruled unconstitutional by the Supreme Court
Abolish the ‘reasonableness’ standard, which is used in petitions and rulings against government decisions
Change the makeup of the judicial appointments commission, so that there will be a majority in the commission for government representatives
A peripheral issue: changing the legal counsels of government ministries from career civil servants reporting to the attorney general, to political appointees
This is astonishingly close to what India should be doing in reining in its rampaging judiciary:
Assert the primacy of an elected Parliament in a democracy, and make it routine to override Supreme Court objections with legislation (without requiring constitutional amendments). A clause just like the Israeli clause seems appropriate.
Abolish the ‘basic structure’ concept, which is amorphous and downright mythical, because it attempts to impute some meta-meaning to the Constitution that was neither written down or possibly even thought of by the framers of the Constitution.
Israel is far ahead in appointments: they actually have a judicial appointments commission; India’s National Judicial Appointments Commission (NJAC) was struck down by the Supreme Court (when they should have recused themselves because of conflict of interest). Parliament should enforce an NJAC with a constitutional amendment (or with an override clause), and as in Israel’s case, give the Executive control over it. The present Collegium system has no constitutional sanctity whatsoever.
This is not directly relevant in the case of India, although perhaps an Indian Judicial Service could be created, that might include all government counsel as well as all future judges. It is odd that lawyers are elevated to judge-ship in India. Lawyers are highly partisan, and are expected to lie and cheat for their clients. It boggles the imagination that one fine day they suddenly become impartial and neutral judges.
With a fairly dependable majority in both houses of Parliament, the Indian government should proceed with implementing the sensible things in items 1-3 above. The Collegium should be abolished forthwith, the NJAC created, and the primacy of the elected Parliament over an unelected Judiciary should be asserted, and that too, unambiguously.
There have been some statements by the President and the Vice President, as well as the Law Minister, that suggest that the government is serious about judicial reform. This is a real need, partly because of nepotism in judicial appointments, and outright unbelievable judgments that reflect the realities not of India, but of woke America. There is no reason to accept either.
The reaction in Israel’s case is also notable, because the same will happen in India. There have been large protests. Getting hold of 100,000 people (according to reports) in a small country must not have been easy, and we don’t know how much of this is sock-puppetry/astroturfed. The Israeli protests have been peaceful, but we know from recent experience in India that the lumpen will riot, attack policemen, and set things on fire. Their goal is strategic, just as in the incendiary Hindenburg hatchet-job on Adani, the BBC ‘documentary’, and the Oxfam report.
In India it is not difficult to round up the usual suspects and create a grave law-and-order problem, as has been seen repeatedly: anti-CAA, farm-bill and any number of other ‘protests’. Indian governments are remarkably shy of creating ‘incidents’, and allow rioters free rein (well, so long as they belong to certain groups. Ram Rahim didn’t qualify; so 30 of his followers were shot dead; Mulayam Singh Yadav killed scores in Ram Janmabhoomi, but he qualified).
Chances are, therefore, that there will be ‘protests’. The government needs to be prepared to contain this with the full power of the law. There is nothing legal, or even moral, about the current imperiousness by the judiciary. Case in point: a SC judge threatened government that it might face “unpalatable action” if it didn’t do something the court wanted (transfers).
Why is there nothing moral about it? The entire ‘basic structure’ argument is a red herring. It seems to be modeled on the ‘original intent’ argument in the US, which attempts to divine the original intention of the writers of the US Constitution some time in 1787. How on earth do you ‘divine’ what dead white men intended in 1787? Maybe read chicken entrails?
Similarly, there is no need for a ‘basic structure’ meme in the Indian Constitution, because the framers, some 75 years ago, wrote at great length, indeed very great length, about what they thought (whether you agree with it or not). For some judge to ‘divine’ in 1973 that there is a ‘basic structure’ to the Constitution (which, remarkably, is not defined by the judges, so that they can decide on a case by case basis what the ‘basic structure’ is) seems extraordinary.
Indeed, this seems to be a ploy to establish the permanent superiority of the Judiciary over the Legislature, because it says that the Judiciary can overrule anything that the Parliament passes by declaring it to be a violation of the goalpost-shifting ‘basic structure’. And what happens if a new Constitution is written? Will it have a different ‘basic structure’?
In fact, the Supreme Court apparently struck down the 99th Constitutional Amendment and the related NJAC Act of 2014 using the ‘basic structure’ argument as justification. Which seems like quite a circular argument; and indeed it suggests Parliament can be overruled at will by the SC by saying it violates the ‘basic structure’, which, let us note again, is not defined. This means the SC runs the country, and that is not right in a Republic, where the people rule.
The most pernicious example is the Collegium, a group of judges that selects judges.
The Collegium has been attacked by various observers because of what they call rampant nepotism. Many relatives of current and past judges, they say, are selected by other current judges with no oversight or input by the elected representatives of the people, unlike, say, Senate confirmations in the US. They allege a quid pro quo, which is a stain on the Judiciary.
The establishment of the Collegium by several SC decisions including a major one in 1993 can be plausibly deemed unconstitutional because the Constitution does not mandate such a system. Parliament could go one step further: revive the alternative, the NJAC, cancel the Collegium, and then apply its brahmastra, the Ninth Schedule.
The Ninth Schedule consists of laws that cannot be challenged in court. Therefore, perhaps there is an end run whereby Parliament amends the Constitution once more with a new NJAC Act, and puts it beyond reach of the SC by putting NJAC-related laws into the Ninth Schedule. That appears to be immune to judicial interference.
In fact, Parliament could possibly go one step further and nullify in toto the ‘basic structure’ argument by attaching a rider to the above amendment that says the ‘basic structure’ is also in the Ninth Schedule, and thus not amenable to legal action.
To be honest, all this sounds like legal hairsplitting, and a waste of time, but the fact is that there has to be a balance of powers among the Executive, Judiciary and Legislature. For far too long, the Judiciary has been arrogating super-powers to itself. This needs to stop in India, just as much as it needs to stop in Israel. There is a limit to judicial overreach and we may have reached the breaking point in both countries.
1350 words, 29 Jan 2023, updated 6 Feb 2023
Ep. 88: Collegium chaos -- Israel’s judicial reforms find a parallel in what India needs