Supreme Courts: Threats across the world
Israeli Judicial reforms, India's own Judicial Reform Bill and even US Supreme Court appointments have all created waves. Supreme Courts across the world seem to be under threat. Is it so?
The first time it struck me was when the Indian Judicial Reform Bill in 2015. But things became serious when recently there were mass protests in Israel over Judicial Reforms. There seems to be friction between the Parliaments of various countries and the Courts tasked with Constitutional interpretation. In the case of India and Israel, it does appear that the Courts are protecting themselves. So are the Courts and Supreme Courts under attack by politicians across the world?
Courts are a pillar of democracy.
The judiciary, or the legal system, forms one of the pillars of democracy - both in India and all democratic systems. To clarify, there are four pillars of democracy.
The legislature or parliament, under its various names across countries, is the first pillar and the most dominant of them all. It is the role of the legislature to determine how to govern the country. To that effect, it issues instructions, sometimes passing laws, other times calling for reports etc. The legislature is even empowered to change the Constitution.
The executive, or the government, is pulled out of the Parliament and forms the Administrative branch. It is the second pillar. It is the job of the executive or the government to implement the desires of the legislature in the best possible manner.
The judiciary forms the third pillar. The judiciary is the custodian of the Constitution. It interprets the Constitution. It adjudicates the disputes (a) between citizens; (b) between citizens and the state; (c) between different arms of the state, say between the state government and the national government, and (d) other legal duties such as in India, the Supreme Court is legal advisor to the President.
Finally, media or journalists form the fourth pillar. Media informs and scrutinises all three - legislature, executive and the judiciary. It also informs and critically examines the society itself. With this knowledge, it defines the political and social issues facing the country.
Of all these pillars, the legislature/Parliament is the foremost pillar.
Why is Parliament the foremost pillar?
It is by design that Parliament is the foremost among all the pillars. The Parliament is even empowered to change the Constitution. There are a few reasons for this.
The Constitution is like a contract signed by the people who are long gone. That contract is binding on you as you are born into that contract. The realities under which the founders gave us these Constitutions have long since changed. So you find yourself in a new reality abiding by a contract signed FOR you ages ago. You have no choice regarding that. The founders gave us the option to change the Constitution through the parliament.
The Parliament represents the true will of the people. If it is indeed the people's will that certain laws be passed, then that public will is manifested into reality by Parliament passing the bill into law.
The other pillars essentially exist to ensure that the people's will is abided by. The Government aims to administer this will of the people into practice. The media keeps a watch on whether the government does its job efficiently and does it remain true to the will of the people. The judiciary resolves the disputes arising from the actions of the government. It tests the government’s action as to whether it is in accordance with the people's will expressed in the Parliamentary law.
The Parliament itself keeps a check on the government through oversight committees and compliance procedures.
But the Supreme Court of India is trying to stop the Parliament.
If the Parliament passes a law for judicial reforms, the Supreme Court must accept that law and move on.
The Supreme Court has abrogated to itself the power to defend the Constitution as the Court interprets it. This is beyond the remit of the Supreme Court. This is a form of the new religion of Constitutionalism.
The Supreme Court of India has gone a step further. It has created a collegium system not found or even obliquely referred to in the Constitution. The Supreme Court now defends such a system over the people's will as expressed by the Parliament by passing the law. This, to my mind, is a grave contempt of the Constitution and the contempt of the people.
The Supreme Court has used the International treaties and declarations signed by the government of India on behalf of the Parliament to CREATE laws on various issues, including sexual harassment at the workplace and workmen's safety and compensation. These actions were accepted by the people saddled with non-functioning Parliament. Yet, these innovations, even though laudable in their intent, must be exercised in the rarest of rare instances.
The Supreme Court must get rid of this supremacist attitude forthwith.
A similar issue is happening in Israel.
It was found that the laws passed by the Israeli Parliament are set aside by the Supreme Court on the ground that the laws do not meet the spirit of the Israeli Constitution as interpreted by the Israeli Supreme Court.
To correct this travesty, the Israeli government proposed a Judicial reforms bill in their Parliament. If that bill is passed, it will circumscribe (and maybe curtail) the unfettered powers of the Supreme Court. The judicial reform bill has not yet passed in their Parliament. Without going into the details of what the reforms intend to do, IF the parliament indeed passes the reform bill, the Israeli Supreme Court must accept that law.
Judiciary as an ideological outpost of the left.
The behaviour of the Supreme Courts in the above cases and the judiciary globally has to be examined critically.
The judiciary cannot become an ideological outpost for any ideology. And yet, we find the Supreme Court copying the talking points from the latest left-liberal fads and propaganda without applying their minds. The judiciary does not have an independent ideology but what is given by the people’s will i.e. the Parliament.
The judiciary exists to uphold the principles and the spirit of the Constitution. However, it is not their remit to pull into the spirit of the Constitution all the ideas that catch their fancy.
Judges have started to think of themselves as a fount of wisdom that decides the direction nation should take. This is anti-democracy.
The ideological capture must be stopped.
The left has taken over media and education. There is also a distinct effort by the left to capture the Central banks and financial regulatory side of the government. Socialism has infiltrated public policy much to the detriment of long-term economic growth. This ideology has now infiltrated the judiciary. This ideological capture has to be stopped. It is time to reclaim the judiciary as a true institution of democracy.
In sum, it is not the judiciary or the Supreme Courts that are under threat. It is that the Supreme Courts and judiciary are threatening the very fabric of democracy.
A note about US Supreme Courts
US Supreme Court has unique features where judges can work till the end of their life or till they choose to retire. However, their appointment is made by the US President, so there is political influence in the appointments.
Then it was the Trump US Supreme Court appointments. The candidate, Brett Kavanaugh, was accused of rape, but the allegations were proven false. Then Biden candidate, Kentaji Jackson, was grilled on whether she could define “woman”.
Any of the cases above could be classified as the constitutional process in action.
Rahul -- Thank you for this well written article. A fifth grader could understand it with ease. In my mind, that is excellence!