Judicial Independence vs Parliamentary Supremacy: Reignition of debate vis-à-vis Israel and India

Abstract

Huge demonstrations are going on in State of Israel against the Judicial reforms being proposed by the PM Netanyahu led Government.1 In India also war of words is ongoing between senior government functionaries and Higher Judiciary over the collegium process and its impact. Per se the healthy discussion and negotiation between different organs of the government is not bad but it should not be with an aim to reduce their importance. Judicial independence is the hallmark of Rule of Law in any democracy.2 It only protects individuals’ liberty but also keeps a check on the state excesses or biasness. Indisputably, the parliament has an exclusive right of law making but the moot question remain whether power to amend includes power to destroy. There must be checks and balances on all the three organs of the government. Even Judiciary cannot be allowed free run without any accountability and reforms must keep going but any Judicial reforms cannot be allowed to strike at the root of Judicial independence itself as it would destroy the institution. In this paper I have tried to explain the current situation in Israel where the proposed reforms being brought in the name of Judicial accountability and Judicial reform threaten the very concept of judicial independence. It strikes at the very basic theorem of separation of Power and would promote autocracy and dictatorship in the long run. As Israel is a parliamentary democracy, the executive heads already influence the decisions of the Knesset in a major way & if they get to have the same in Judicial appointment then the political leaders ruling the State of Israel will have all the powers with very less accountability. In comparison the situation in India is different. While verbal arguments are going on between Judiciary and Executive it is more or less limited to Judicial appointment with others spheres of Judicial independence like Judicial Review not part of the public debate. The paper also argues about the need for Judicial independence in a democracy and the Power of Parliament to amend is not absolute and unlimited.