Why Judiciary’s Independence is a Big Thorn in Designs of Autocrats

..[t]here is another way to break a democracy. It is less dramatic but equally destructive. Democracies may die at the hands not of generals but of elected leaders—presidents or prime ministers who subvert the very process that brought them to power. Some of these leaders dismantle democracy quickly, as Hitler did in the wake of the 1933 Reichstag fire in Germany. More often, though, democracies erode slowly, in barely visible steps.

How Democracies Die - Steven Levitsky and Daniel Ziblatt

The greatest danger the tyrant can inflict is to limit us to his range of options, not only “for how to live, but also for how to exercise our options.”

- Hisham Matar

(American born British-Libyan writer)

Every hurried and ill-thought attempt to browbeat the judiciary on the basis of legislative majority hides the possibility of a backfire.

Israel’s Prime Minister Benjamin Netanyahu, popularly known as 'Bibi', is learning this lesson the hard way, in the midst of a genocidal war he has unleashed against the Palestinians -- a war which has already killed more than 30,000 people -- mostly women and children.

Gone are the days when he was riding the popularity charts. Today, after the attacks on Gaza, there is increasing discontent among the Israeli people themselves against this 'unending war' which has manifested itself in the demand of Bibi's quitting to 'Save Israel’. Massive protest demonstrations have been held in different parts of Israel.

The recent judgements of the Supreme Court of Israel have further added to Netanyahu’s discomfort.

The highest court there has not only rejected his attempts for judicial overhaul, an agenda which he had pushed ahead despite witnessing one of the biggest mass movements in Israel opposed to it. This has delivered another blow to him by denying any further relief to the ultra orthodox Haredim sect in military service.

The Haredims today make up around 13% of Israel's population, and their political parties have been members of the Bibi-led government. Any move to remove a ban on their military conscription can easily impact the status quo and can put his government in trouble.

It is an open secret that the rejection of the plan of judicial overhaul has, sooner or later, opened up the possibility of Bibi’s criminal conviction in cases pending before the courts. Remember, Netanyahu himself faces charges of bribery, fraud and breach of trust, whose trial is already going on,

It remains to be seen whether Bibi will be able to wriggle himself out of the perilous situation he finds himself in.

It is an interesting coincidence that Bibi being put on the defensive by the judiciary itself happens to be the same period when Netanyahu's 'best friend' from India is also getting a glimpse of what it means when the judiciary decides to go by the book when there are rising concerns about it. Some examples:

- The stay on the Fact Checking Unit under the IT Rules 2021 - which had made the Press Information Bureau (PIB) the sole arbiter to declare any news as 'real or fake' and opened up the possibility of criminal prosecution of social media intermediaries

- Setting aside of the Office Memorandum of the Environment Ministry diluting environmental norms in regard to linear projects

- Judgment holding that it is not a crime to criticise the decision of Narendra Modi government to abrogate Article 370 and withdraw special status to Jammu & Kashmir.

The judiciary's attempts to stick to constitutional principles and values, have similarly brightened the faces of all civil liberty loving people and formations.

The most destabilising move on part of the Supreme Court, in recent times, has been its verdict declaring the Modi government’s move to issue electoral bonds as completely unconstitutional. It also forced the State Bank of India to declare all relevant details in the public domain.

The apex court underlined that the anonymous electoral bonds scheme was ‘violative of the right to information’ under Article 19(1)(a). It said that political parties were relevant units in the electoral process and the information about funding of political parties was essential for making electoral choices.

The saga of the electoral bonds, which had come under scanner since their inception, which have been declared the 'biggest scam in independent India', has made it clear how a major part of its contributions went to the ruling dispensation. Even companies that were making losses contributed heavily to the ruling Bharatiya Janata Party’s (BJP) coffers. There were instances that government agencies, namely the Enforcement Directorate or ED and Central Bureau of Investigation or CBI, raided companies for financial and other irregularities and all the enquiries against them stopped once they contributed to the opaque electoral bonds.

Perhaps the way in which a letter drafted by 600 lawyers close to the BJP -- written to the Chief Justice of India -- was immediately shared by Prime Minister Modi on his X (Twitter) handle has further exposed the government’s attempts to further pressurise the judiciary.

And as the response by All-India Lawyers’ Association for Justice (AILAJ) makes it clear, that it (the PM’s tweet) is a 'Thinly Veiled Threat to Judicial Independence' that comes at a time when the Supreme Court is slated to hear crucial cases concerning the use of EVMs (electronic voting machines), the constitutionality of CAA or Citizenship Amendment Act and the arrest of Opposition leaders and political activists.

Bibi There, NaMo Here

The ‘Best Friends’ are both passing through more or less similar predicament -- when engaged in tough 'battles' with the Opposition - at the hands of the judiciary

It is difficult to predict, as of now, how things will unfold in future. One thing is crystal clear, that their battles with the judiciary are of their own making.

One can recall Bibi's assumption of power (December 2022) where he headed a coalition government which is considered the most Right-wing government in Israel's history. One of the first moves of his government was to bring in a law to clip the independence of the judiciary, which he ultimately did despite tremendous resistance to it. That law was finally rejected by the Supreme Court. (on January 1, 2024)

The ruling dispensation here, led by Modi, wanted to do this in a more subtle and ‘not so subtle’ manner. It wanted to have a say on the appointment of judges, disregarding the fact that this will severely impair the judiciary’s independence.

The manner in which the then Union Law Minister Kiren Rijiju lectured the judiciary is well reported. The manner in which Jagdeep Dhankar, the Vice-President of India, questioned the basic structure of the Constitution and also the procedure to appoint judges, giving strong indications of the government’s intentions, are now part of history.

Even a layperson could understand the real motive behind these efforts.

For the powers that be, establishing complete hegemony over the judiciary was of key importance.

They realise that they have been able to establish hegemony over the legislature and also the executive. This move has been marked also by increasing weaponisation of its institutions since its ascent to power in 2014. They have also been successful in largely defanging or domesticating the mainstream media -- which is called the fourth pillar of democracy -- and turning into “godi'' (embedded) media.

They understand very well that the third pillar of democracy -- the judiciary -- is still not under their complete control. Unless and until complete hegemony is established over the judiciary, the possibility will always exist that it will act as dampener to this government’s attempts to completely undermine the Constitution and usher in a Hindu Rashtra.

A glimpse of how the BJP government is surreptitiously engaged in doing this internally, can be had by listening to Dr Mohan Gopal, an advocate and legal academician. In a lecture, he tells us about how with the ascent of BJP at the Centre, 'The Number of Theocratic Judges Who Find Source Of Law In Religion Than Constitution has Increased:

"An increase in traditionalist/ theocratic judges - as it happened in Modi led NDA regime is essentially part of two- part strategy to achieve the goal of establishing Hindu Rashtra by 2047, not by overthrowing the Constitution but by interpretation by the SC as a Hindu Document" (-do)

First step involves appointing judges who are ready to look beyond and the second phase which will now begin where judges will identify the source and it began with the Hijab judgement ...

..We can slowly reach a stage where we can say that India is a Hindu Theocracy under the same constitution- as reinterpreted by the SC , so the idea is to hijack the judiciary and establish a Hindu Theocracy (do-)

The outcome of this battle to maintain the judiciary’s independence and save it from interference by the executive will have long-term consequences on democracy in India,

For the ruling dispensation, which is trying every trick in its armoury to 'rein in the judiciary', the words of a sitting Supreme Court judge, Justice B V Nagarathna -- who will become the first Woman Chief Justice of India - would not have come at a worst time. Justice Nagarathna, who sometime back cancelled the remission of sentences to the rapists of Bilkis Bano and was the sole dissenting judge in the five-judge bench which deliberated on the policy of demonetisation, lambasted this policy in a public lecture and called demonetisation a way of converting black money into white.

No pleasing words coming from a sitting judge of the Supreme Court on the eve of elections.

The writer is an independent journalist. The views are personal.