A version of this essay was published by firstpost.com at https://www.firstpost.com/opinion/shadow-warrior-judiciary-problems-as-a-symptom-of-the-end-of-the-liberal-world-order-12376822.html
On the face of it, it’s not a good time to be a judge these days. Or at least, if you don’t enjoy being in the media glare. The headlines are ominous. In Israel, there is massive unrest against the Netanyahu government’s attempt to rein in its judges. In India, there is veiled abuse of the judiciary because a judge in Surat has disqualified the Congress heir apparent from Parliament.
In the US, there is an ongoing prime-time drama over whether former POTUS-cum-current aspirant for 2024 Donald Trump will be arrested for allegedly paying off a call girl. Furthermore, ‘liberals’ are up in arms about what they perceive to be the ‘stacking of the courts’ by Trump when he was POTUS.
What takes the cake, though, is that Pakistan, that exemplar of separation of powers, is also complaining (hat tip to Bapa Rao): their PM is now demanding that their Chief Justice should find his powers curtailed.
It’s a matter of damned if you do, and damned if you don’t. The Economist speaks with forked tongue.
And the inevitable New York Times has jumped into the fray, almost exactly as I predicted.
The NYT’s bellyaching is full of sound and fury. They never let facts get in the way of a good narrative!
Jokes aside, there is good reason for people in India to pay close attention to what’s going on in Israel, from two or three points of view. The first, as I articulated earlier in How Israel’s judicial reforms find a parallel in what India needs, is that judicial overreach cannot be condoned, because it violates the constitutionally-guaranteed balance of powers among the pillars of the State.
As things have turned out, there are also social parallels. In India, the rise of the OBC and SC/ST groups to power is something that the traditional ‘upper-caste’ Anglo-Mughalai elites watch with concern, as they find their zamindari-era privileges slipping away. It appears that in Israel too, there is an ongoing power struggle between the ‘liberal’ elites and the increasingly assertive and more conservative masses.
Furthermore, to take it one level further, it may be part of the general breakdown of the so-called ‘liberal, rules-based international order’, the post-WW2 consensus that has dominated power equations in the world for some years. The ongoing saga of the banking contagion, as well as emerging alliances and truces between erstwhile arch-enemies, all point to a sea-change.
The legal parallels with Israel
To look at these one by one, let’s take the Israel-India parallels. In both cases, the judiciary has extraordinary powers (which are either vaguely defined as in the case of Israel, or have been invented by the judiciary themselves as in India) which, in the best of circumstances, can act as a check and a balance on the executive and the legislature.
In reality, however, what it amounts to is a judicial veto over even mundane acts of governance, as the judiciary continues to encroach into what is properly the domain of the executive.
In India, this has reached epidemic proportions, partly because of two reasons: one, the peculiar device called Public Interest Litigation (PIL) that enables ill-intended third parties (especially foreign funded NGOs) to go straight to the Supreme Court and (for all practical purposes) get laws written there, bypassing the normal legislative process; and two, suo moto action, by definition the judiciary being activist on its own without anybody petitioning it.
All this happens while the courts neglect their fundamental function, that of dispensing speedy justice and of interpreting the Constitution and other laws. The backlog of millions of cases is both an affront to the dignity of the average citizen (“justice delayed is justice denied”), and also a crucial bottleneck in business (it hurts Ease of Doing Business metrics).
The social parallels with Israel
The social parallels are articulated in several stories in the Jewish online magazine Tablet, which incidentally has good content: I am currently enjoying a good series on disinformation and the so-called ‘Censorship-Industry Complex’. There is one on Israeli tech bros resisting, another on who’s actually opposing the Netanyahu government and there is Bernard-Henry Levi on Israel’s bad shepherds, that is the Netanyahu government again.
What is evident is that there is a yawning gap between the world-views of two groups. One is the European-origin, liberal, Ashkenazi Jews who founded the modern Israel State as a reflection of their Zionism (note: there are some parallels with Hindutva, but the analogy cannot be stretched too far). These are the traditional elites, the patricians dominating the State since its inception.
Then there are the largely Sephardic (Mediterranean, North African and non-European-origin) Jews, who have generally formed the plebeian masses. They are generally more religious, and are worried about day to day issues such as jobs, and defense. The Ashkenazi tend to mirror Anglosphere memes and concerns, often reflecting Left concerns about the victimization of Palestinians under what they view as deplorable nationalism on the part of the conservatives.
What is surprising, in passing, is that groups that on average are apolitical, including the armed forces as well as the technology industry, came out strongly in favor of the status quo. It is also an example of Nassim Taleb’s ‘tyranny of the stubborn minority’: a very small, motivated and focused group can create havoc:
All this reminds the Indian observer of the Anglo-Mughalai traditional elite, who made their fortunes by collaborating with invaders, both Muslim and Christian and/or oppressing the masses as zamindars. After independence, they smoothly moved into the role of the overlord, vacated by the departing British. This has continued for 75 years, and they are usually so-called ‘upper castes’. Regardless of party affiliation, this group dominates all walks of life.
While volumes were written about the whole episode of the disqualification of the Congress scion, what stood out was the ‘upper-caste’ elite class’s sense of entitlement. They honestly believe in their manifest destiny, especially that of the Nehru dynasty, to rule India forever.
It is intriguing that this type of casteism happened with Leftists, too. In West Bengal, the Marichjhapi massacre (“Blood Island”) of SC/ST refugees from Bangladesh under CPI(M) rule, and in Kerala, the fact that it took 50 years from 1956 to 2006 before an OBC became a CPI(M) Chief Minister, despite its rank and file being overwhelmingly OBC, shows how caste has been correlated with privilege.
In the recent past, the so-called ‘lower castes’, the OBCs and SC/ST (nominally, the PM and the President are both from these bahujan groups), have been on the ascendant. This has naturally caused friction; this may come to a climax if the Government of India goes ahead with its own plans to rein in the judiciary. The same toolkit will be rolled out, to loud condemnation by elites and by media, both local and international.
Incidentally, I find it appropriately ironic that today, 30th March 2024, is exactly 99 years from the day the Vaikom Satyagraha started in Travancore, an iconic protest by all sections of Hindu society against the prohibition on temple access for OBC and SC/ST groups. This led to the epoch-making Temple Entry Proclamation by Maharaja Chithira Thirunal on November 12, 1936, paving the way for full equality for all Hindus in worship, and thus in society in general.
Going back to Israel, Netanyahu has been forced to defer his plans, and since the GoI has demonstrated that it can be intimidated by street violence (eg. Shaheen Bagh, ‘farmer’ agitation, Republic Day 2022 attack on the Red Fort), it is very likely that the same tactics will be tried in India as part of the agendas of ‘regime change’ and ‘sub-national diplomacy’. I will leave this twitter comment here, although I have no way of verifying its accuracy.
It is just a reminder that politics is war by other means, and as of now, the judiciary is being weaponized.
The last gasp of the ‘liberal, rules-based international order’?
I am sorry to say that the ‘liberal, rules-based international order’, which basically has meant the US acts as the adult in the room to keep unruly lesser powers from breaking things, is looking a little ragged now. The problems with judiciaries, judicial overreach, etc may well be a symptom of a larger unraveling. “Things fall apart: the center cannot hold. Mere anarchy is loosed upon the world”, as W B Yeats wrote in The Second Coming.
I wrote a year ago that many in the Anglosphere were looking wobbly as wokeness was at last meeting the real world. Sure enough, Jacinda Ardern and Boris Johnson are gone, and Justin Trudeau and Joe Biden look a little shaky. And Australia has had a change of Prime Minister.
Other allies are not in better shape: France and Israel are rocked by riots. In the crucial Middle East, Saudi Arabia has signed a peace deal with Iran under the auspices of China -- and the implications of this for the petro-dollar are vast. Switzerland’s allegedly rock-solid banking system has been upended by the collapse of Credit Suisse. Deutsche Bank is teetering too.
The failure of several US banks suggests that the Federal Reserve and GOTUS have not managed the covid pandemic and its aftermath well. The continuing fallout from the loss of Russian gas is that Germany’s industrial sector is in the doldrums. The focus on the Ukraine war means that serious problems in the US are not getting much attention.
All this is alarming, because the alternative to pax Americana may well be pax Sinica, and that will not be a good thing, given the long history of Chinese empires, their brutality towards vassals, and their sudden collapses. India will have to invest hugely in a pax Indica in the Indian Ocean, and that means massive spending: surface ships, nuclear submarines, and so on. This is money that will have to be diverted from development.
Not to mention the increasing likelihood of a nuclear World War III, if, as many expect, China attacks Taiwan. Or even worse, what if the US simply abandons Taiwan, and by implication the rest of Asia, to the tender mercies of the CCP? Writing in the WSJ, W R Mead expresses the concern that America’s allies may start writing off the US, and look for a Plan B.
The problems of the judicial systems are only a symptom that there is widespread turmoil coming, or already here. We are cursed to live in interesting times. We may look back on the tranquility of pax Americana with nostalgia.
1750 words, 30 Mar 2023
Ep. 97: Judiciary problems as a symptom of the end of the liberal world order?