Judicial Reforms: What India can learn from current Israel’s protests

    After questioning the existing collegiums system for months, Union Law Minister Kiren Rijiu has finally made a move to make changes in the system. He wrote a letter to CJI asking to involve central and state governments in selecting judges to bring in transparency and accountability. While an answer from the CJI is awaited, the opposition has jumped in targeting the government. Delhi CM Arvind Kejriwal, Congress leader Jairam Ramesh and TMC leader Kapil Sibal slammed the government’s move. While Kejriwal called it a dangerous move and said the government should not interfere in judicial appointment, Kapil Sibal said the government was trying to capture the judiciary. Jairam Ramesh said the government was intimidating the judiciary to capture it.

    Is the government really trying to capture the judiciary?  IS the move really dangerous? Why did Kiren Rijiu write this letter? What it actually implies? Is it part of NJAC or is it different? Let’s take look at it now.

    First, by writing a letter to CJI, the government is not intimidating the judiciary as Jai Ram Ramesh is implying. It is not a dangerous move as Kejriwal is peddling. The move in fact was suggested by the Supreme Court a long time ago.

    We all know the government introduced the NJAC bill in 2014. It was passed in both Lok Sabha and Rajya Sabha. Later 16 state legislatures ratified the bill.  Finally, the then President of India late Pranab Mukherjee signed on the bill after which the NJAC act came into effect.

    But, the Supreme Court struck down the act, saying the decision of transferring and appointment of judges should be done by the Chief Justice of India. Along with striking the act, and taking states’ and centre views into account, Supreme Court asked the government to prepare a Memorandum of Procedure in consultation with CJI to bring transparency in the collegium system.

    Before Kiren Rijiu wrote this letter to CJI, the Parliamentary committee, headed by BJP veteran Sushil Kumar Modi expressed surprise that the government and SC collegiums couldn’t come to a common ground for a Memorandum of Procedure for judges’ appointment even after seven years.

    The panel said, “The committee is surprised to note that the Supreme Court and the government have failed to reach a consensus on the revision of the Memorandum of Procedure (MoP) for the appointment of judges to the constitutional courts (SC and the 25 HCs), though the same is under consideration of both for about seven years now.”

    Now it’s clear that the government is doing what Supreme Court said after striking down the NJAC act. But is Rijiju’s letter bringing back NJAC? Well, look like it’s not. Rijiju confirmed the same thing in the last parliament session. When asked whether the government was bringing back NJAC, the law minister said there were no plans to bring back the act.

    What the government recently asked in the letter is completely different to the NJAC act. While NJAC was replacing collegiums with the new system, the letter implies the involvement of the government in the existing judges’ selection.

    If the NJAC came into effect, judges’ selection would have happened by six members committee. Those six would have been CJI, two senior Supreme Court judges, the law minister two eminent personalities from civil societies. These personalities would be nominated by the CJI, PM, Leader of Opposition and one eminent personality from SC/ST/OBC minorities or women.

    Is the new letter implying that? Well no. Then there is no point in comparing Rijiu’s letter with the NJAC act.

    While the government has been vocal about bringing transparency in collegiums, it has to take the latest happening in Israel into account before making any changes.

    You may be thinking about how Israel came into India’s judiciary, well, you’re right. But what I’m saying is India should take note of what’s happening in Israel and should plan accordingly to avoid protests.

    We know that after the elections in Israel, Benjamin Netanyahu formed the government with a few other parties. This coalition is said to be the farthest right in the country’s history.

    One of the first moves of the coalition was to make changes in the country’s judiciary. The country’s justice minister Yariv Levin announced sweeping changes in the legal system. One of the changes would reduce the power of judges in the judicial selection committee. At the same time, the government would have substantial control over judges’ selection. The new system will limit judges’ power in striking down legislation. The reforms will give substantial power to Knesset, which is Israel’s parliament to re-legislate laws which the court strikes down if the government has the majority. The system gives the government enough powers to select Supreme President and vice president who didn’t serve in the Supreme Court or possibly even in lower courts. Do you know what’s more appalling about these reforms? The court cannot hear any arguments against Israel’s quasi-constitutional basic laws. There will be no validity to the court’s decision to annul or limit the basic laws.

    The new reforms have lit a fire on Israeli streets. Opposition leaders, intellectuals, scholars, jurists, and the general public took to the streets to oppose the government’s new system. While the opposition is calling it illegal, the government is saying the new system will strengthen democracy.

    Several opposition leaders are fear-mongering that the new reforms could lead to civil war. Despite protests, the government is not backing down. The alliance officials said the government expects to pass the bill by March end.

    Now, that I took what’s happening in Israel, can we compare India’s law reforms with Israelis’? Well no. Be it NJAC or asking to include the government in collegiums….the Indian government is not trying to override the judiciary’s power.

    But when it comes to law reforms in Israel, the government will have the absolute majority. Take the judges’ selection committee for example. The current panel comprises nine. The bill proposes to increase the number to 11. The panel comprises three government ministers including the law minister, three Knesset members, of which one may be from the opposition, two public representatives chosen by the law minister and three high court justices including the chief justice.

    It means the government has the complete majority. The Indian government is not seeking that kind of system here. So NJAC or the latest letter cannot be compared with Israeli law reforms.

    But what we have to see here is the protests. While Israelis certainly have a reason to protest, several opposition leaders, and intellectuals are playing a key role in scaling it up. Over 80000 Israelis are protesting against the law reforms.

    Now that is not something India can afford at this point. A war between the judiciary and government at this point will dampen the country’s growth.

    We have seen how the opposition peddled fake narratives in CAA-NRC and farm laws. Several groups took to the streets. Few even blocked the way to the country’s national capital for over a year. This forced the country to take back farm laws.

    As for judicial reforms, the opposition has already started peddling a fake narrative. Imagine if a similar situation repeats with law reforms, it will become a nightmare for the government to control the protests. We have to see whether CJI responds positively or not.

    While the judicial reforms are a priority….government cannot afford another shaheen bagh or farmers’ protests.

    Especially with elections close by, the government has to make moves strategically, just like how it did while abrogating Article 370.

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