'Saw Democracy In Full Swing' : Former SC Judge Nageswara Rao On Protests In Israel To Protect Judicial Independence
Amidst a huge uproar in Israel and around the world over Prime Minister Benjamin Netanyahu’s plan to overhaul the country’s judiciary, former judge of the Indian Supreme Court, L Nageswara Rao attended a demonstration against the proposed reforms in Jerusalem on Saturday, together with Supreme Court justices from Canada, and Ireland as well as other legal luminaries from various...
Amidst a huge uproar in Israel and around the world over Prime Minister Benjamin Netanyahu’s plan to overhaul the country’s judiciary, former judge of the Indian Supreme Court, L Nageswara Rao attended a demonstration against the proposed reforms in Jerusalem on Saturday, together with Supreme Court justices from Canada, and Ireland as well as other legal luminaries from various parts of the world.
Speaking at an emergency conference on threats to judicial independence titled, ‘No Other Democracy in the World’ on the following day, Justice Rao suggested that Israel should look towards the example set by India, which was not only the largest democracy in the world but had safeguarded judicial independence by, inter alia, rejecting the proposed National Judicial Appointments Commission. After giving a brief historical conspectus on the development of the Indian collegium system, Justice Rao said:
“The proposed commission would have comprised the chief justice, and two senior-most judges of the Supreme Court, as well as the law minister, and two eminent citizens appointed by the executive. A Constitution Bench reaffirmed that appointment of judges to constitutional courts was a very important characteristic of the independence of the judiciary which had to be maintained for upholding the rule of law. Bringing in persons from outside the judiciary to sit along with the law minister and veto the recommendations made by the court would amount to tilting the balance of power.”
The balance of power, Justice Rao categorically stated, was very important in view of the principles of checks and balances. Constitutional courts in India are empowered to review not only executive action, and legislative action, but also an amendment to the Constitution itself, he pointed out. He also spoke about past attempts by the government to suspend fundamental rights as well as other rights conferred on citizens, that were successfully repelled by the top court in the exercise of its power of judicial review.
“There is an imperative need that you have to have independent judges who are efficient and who work with the fear of without fear of favour. That is what has been happening in India. We are in a safe space in comparison to what happened in Hungary and Poland,” Justice Rao said, after explaining how the current collegium system functions and the primacy of the judiciary in judicial appointments in the country.
While delivering a press statement at the end of the conference, the retired Supreme Court judge commended the demonstrations of the previous day, saying, “We saw democracy in full swing yesterday evening when citizens in Jerusalem expressed their anguish over the proposed reforms.” He added that in any democratic country, the people of the country were supreme and their confidence was integral in upholding the rule of law. An important ingredient of the rule of law, he said, was the independence of the judiciary. “People should have confidence in the judges being efficient and not acting with fear or favour. The appointment of judges is an essential ingredient for upholding the independence of the judiciary. A robust mechanism for the appointment of judges is an imperative need for a civil society.”
The 120-member Israeli Knesset will go for a final vote next week on the proposed reforms, which includes a plan to expand the Judicial Selection Committee in a manner that would give the government a 7:4 majority on the panel, which currently comprises the minister of justice and another minister, the Supreme Court president and two judges, two parliament members, and two representatives of the Bar. Apart from this, the government also wants to, inter alia, enable the Knesset to override any judgement of the Israeli top court, not delivered unanimously, by a simple majority, as well as scrap the reasonability doctrine on the touchstone of which executive action has been tested in the past.
Also in attendance at the conference were Irwin Cotler, former Canadian minister of justice and attorney-general, Andreas L Paulus, former justice of the German Federal Constitutional Court, and Alan Shatter, former Irish minister for justice, together with Hungarian professor Gábor Halmai, and a Polish professor of European and comparative law, Tomasz Tadeusz Koncewicz. All the participants expressed concerns over the proposed reforms that, critics say, are likely to shake the foundation of the Israeli Supreme Court, which has a reputation for fierce independence.