India’s judges could suffer the same fate as Israel’s

Both Indian and Israeli courts have embraced the judicialisation of political conflicts by issuing judgments on issues such as the validity of religious conversions or of religious diets. (Representative image)

Legal scholars have long argued that the supreme courts in Israel and India have much in common. Indians watching what’s happening to Israel’s top court right now have reason to worry something similar could happen here.

Justices in both countries operate in strangely similar circumstances. They both have to address societies that are sharply divided socially and politically. Perhaps as a consequence, both supreme courts have taken on unusually broad constitutional functions. As one scholar delicately put it, they have “displayed amazing ingenuity in interpreting their constitutional” powers.

Both courts have enshrined progressive judicial activism as a guiding principle. Together with the supreme court of South Africa, they have pioneered the idea that any individual has legal standing to petition the judicial system about a violation of the rule of law in the broadest possible sense.

As a consequence, the courts in India and Israel have effectively held the executive to account — or, depending on your perspective, meddled excessively in the executive’s domain. Both courts have also embraced the judicialisation of political conflicts — including religiously charged disagreements — by issuing judgments on such issues as the validity of religious conversions or of religious diets.

It is as a check on the legislature, however, that the high courts are most troublesome to the right-wing populists that have come to dominate democratic politics in both Israel and India. The Supreme Court of India declared half a century ago that the country’s constitution had a “basic structure” which even parliament could not amend. What particularly infuriated some politicians was that the court didn’t spell out precisely which elements of the constitution made up this “basic structure,” yet was sure of its ability to identify them from time to time. (As another leading jurist famously declared in a somewhat different context, “I know it when I see it.”)

Meanwhile, Israel has a set of “Basic Laws” instead of a formal constitution. Judicial review of legislation passed by the Knesset that conflicts with the Basic Laws has become a flashpoint between left and right.

The final similarity, of course, is that in both Israel and India the voters and therefore the legislators they elect have moved considerably to the right in recent decades. The supreme courts are now seen as an impediment to shifting the formal identity of both countries rightward as well. In this view, unelected high court justices are standing in the way of the “will of the people” — ominous phrasing that has recently been used by both Israeli Prime Minister Benjamin Netanyahu and India’s law minister, Kiren Rijiju.

Netanyahu’s government has moved quicker than India’s. Its judicial reform package intends to limit the Supreme Court’s ability to invalidate laws passed by the Knesset and to increase politicians’ influence on who gets to be a judge. It has set off a firestorm of protest, with 80,000 Israelis protesting on the streets of Tel Aviv last weekend.

Indian politicians haven’t yet acted so boldly. Shortly after the current right-wing government came to power almost a decade ago, legislators amended the constitution to give the executive control over how judges were appointed. The Supreme Court promptly struck down the amendment, saying it violated the Basic Structure. Although incensed, the government wisely backed away from a confrontation.

But India’s populists may only be less precipitate than Israel’s, not less determined. They appear intent on winning through anyway by framing this as a battle between a representative legislature and unaccountable judges, rather than between a powerful executive and a retreating judiciary. Last week, India’s vice-president — who, as in the United States, is the presiding officer for the upper house of Parliament — said the “basic structure” doctrine undermined democracy. Speaking at the same event, the speaker of the lower house warned the Supreme Court to stick to its lane and leave lawmaking to Parliament.

One difference is that Israel’s supreme court has resisted changing political circumstances more forcefully than India’s. High court justices in India have become more hesitant or dilatory about deciding cases that would strike down hot-button decisions by the executive, even if important questions about citizens’ rights are at stake. By contrast, judges in Israel have sharpened their scrutiny of politicians: Just this week the country’s high court ordered Netanyahu to fire one of his ministers.

India’s justices might have hoped that their middle path would preserve some of their independence at the cost of their tradition of activism. As one Harvard scholar put it, the Indian Supreme Court’s “contradictory, often adventurous rulings, while negating a systematic advancement of rights, seem to have helped sustain its aura of neutrality.” Certainly, Indian liberals have less faith in their Supreme Court than Israeli liberals have in theirs.

But it’s clear that you can’t compromise with populists; they just keep pushing. When the politicians in India finally come for the judges, I wonder if tens of thousands will march in New Delhi, as they have in Tel Aviv.

Mihir Sharma is a Bloomberg Opinion columnist. A senior fellow at the Observer Research Foundation in New Delhi, he is author of “Restart: The Last Chance for the Indian Economy.”  

Credit: Bloomberg