High Court of Justice 41953-07-26 Free Israel v. Knesset - part 13

Along the way, this assertion was established, renewed, tripled, and in practice was perceived as the starting point for the discussion of the issue (see, inter alia: High Court of Justice 6298/07 Ressler v.  Knesset of Israel, IsrSC 65(3) 1 (2012), at pp.  32,39,101-100,127-125,149-150 (hereinafter: High Court of Justice 6298/07); High Court of Justice 1877/14, paragraphs 42-45 of the President's judgment M.  Naor, paragraph 2 of the judge's opinion Y.  Amit, paragraph 3 of the judge's opinion v.  Hendel, paragraph 3 of the judge's opinion H.  Melcer; Exceptions in this regard were the Vice-President (ret.) M.  Cheshin, and the judge A.  Grunis; See respectively: High Court of Justice 6427/02, pp.  751-753, and pp.  805-806; For the criticism expressed in the literature of the said determination of the majority opinion, whether on the principle level or on the individual level, see, for example: Dorfman, pp.  141-144; Sapphire, pp.  376-378; Sigal Kogut and Efrat Hakak "Was a constitutional right violated?? The need to establish clear definitions of a constitutional right - the constitutional right to equality as a parable" Shaarei Mishpat ז 99,125-129 (2014)).

67. In the framework of my opinion in the case of the High Court of Justice 1877/14 (in a minority opinion as opposed to the majority opinion of my 8 colleagues), I pondered these determinations a little. Among other things, I noted that "the violation of equality here is not of the classic type, in which the court protects any particular individual or group, who has been discriminated against in relation to the rest of society.  In the matter before us, a benefit is granted to a certain group, without this being an abusive and discriminatory treatment of others.  This is therefore a claim of discrimination of a different kind.  It also requires an alternative theoretical basis, as a justification for conducting a constitutional review according to it." I also noted that "individually, it should be asked: Does the non-enlistment of yeshiva students lead to an infringement of the human dignity of the rest of society? This determination is a little difficult for me, because for me, service in the IDF is primarily a privilege and a lesser obligation.  [...] Indeed, it is a privilege to contribute to society and serve in the IDF; one who evades this harms his own dignity more than he harms the dignity of others.  There is, therefore, room for the argument that the conscription arrangement is treated as an infringement of human dignity based on an overly broad conception of this concept, in the sense of 'his dignity fills the world' [...], in a manner that is liable to lead to a disregard for the value of human dignity" (ibid., paragraphs 43-44; in support of an approach that views military service not only through the lens of compulsory, but also through those of the right, see: High Court of Justice 3227/20 Kliger v.  Minister of Defense, paragraph 1 of the opinion of my colleague, Justice R.  Ronen [Nevo] (April 13,2026)).
68. However, I clarified there that "I am prepared to accept my colleague's assumption that there is a violation here of the constitutional right to equality as it derives from the right to human dignity; an old man has already instructed (Bavli, Shabbat 51a), and it is not my intention in the framework of this discussion to disagree with the basic concepts that have been established on this issue" (ibid., paragraph 47). In this matter as well, I do not intend to disagree with those basic concepts, but I would like to dwell on what has changed since the judgment was given in the High Court of Justice case 1877/14, some 9 years ago, and in particular since the outbreak of the war.
69. In the course of the hearing of other petitions, which only recently came to light and dealt with the enforcement of the mandatory conscription set forth in the Defense Service Law on members of the ultra-Orthodox public, I saw fit to note the following: "The same oppressive, screaming inequality that was at the basis of previous incarnations of this issue has become increasingly severe since the outbreak of the war on October 7,2023. As stated by the state's respondents, 'the current forecast is about 110 reserve days for the battalion in 2025'; almost a third of the year.  Those 110 days add up to the many hundreds of days that reservists have been required to perform since the outbreak of the war.  The burden is extremely heavy.  The broad consequences - on the lives of those who bear it, on their physical and mental state, on their families - are unbearable" (High Court of Justice 5819/24 The Movement for Quality Government in Israel v.  Minister of Defense, para.  35 [Nevo] (November 19,2025); these words were indeed made in the framework of an examination conducted at the administrative level, but their logic is also good for the purpose of illustrating the point in our case).  Nor is it superfluous to note in this context, inter alia, that in the same week that the amendment was passed, the Knesset also approved, in its second and third readings, the Defense Service Bill (Amendment No. 29 and Temporary Order), 5786-2026, which extended regular service; that the age of exemption from reserve duty also increased during the war (Defense Service Law (Amendment No. 26 - Temporary Order - Iron Swords), 5784-2024); and that the enlistment of students from Hesder yeshivot, pre-military preparatory programs and those who perform years of service - was advanced.
70. All this, even before I mentioned that "many were killed; thousands were wounded, both physically and mentally. Families were torn apart, reservists lost their livelihoods; many soldiers and civilians will carry with them scars that this period left them all their lives" (ibid., para.  74).  It is important to emphasize that the scope of the impact of the dramatic increase in the burden that occurred as a result of the outbreak and continuation of the war far exceeds the direct consequences of military service itself.  A reservist whose progress in work is impaired, or who is forced to extend his studies for an additional year and delay his entry into the labor market, due to repeated rounds; that spouse, who is forced to cope for long periods of time as single parents, with all that entails; those family members and friends, who live for long periods of time in constant, continuous anxiety, stay awake at night, are outraged by any news report about a "security incident, " in view of their son's or daughter's service on the front lines; and many other similar consequences, which are expressed in a variety of aspects of life, and affect ever-expanding circles.
71. I have said these words - which are well known, unfortunately, to everyone in our districts in recent years - in order to clarify that in practice, the violation of all those values, interests and rights that are involved in the duty to conscript, and which are the practical, tangible expression of the violation of equality - life and bodily integrity, autonomy, property, freedom of occupation and more - has worsened immeasurably since then; both in its scope and in its intensity. Naturally, this has implications for the constitutional analysis in our case.
72. Quite simply, the amendment in question deprives the IDF of one of the main tools at its disposal for the purpose of enforcing the obligation to enlist. A tool that, according to its professional bodies - who are responsible for the implementation of the duty of conscription - has the ability to create a positive and effective effect on the incentive to enlist.  According to the amendment, the denial of this tool is carried out only against members of the ultra-Orthodox public (as I will clarify below, the amendment does not even effectively limit its application to yeshiva students only), those whose non-conscription in the first place created the inequality that was the focus of the discussion in all those previous petitions; and without any alternative enforcement mechanism or supplementary sanctions, which would be able to balance the effect created as a result of the denial of the existing enforcement tools (I will emphasize, for the avoidance of doubt, that it should not be inferred from what I have said here regarding a situation in which the denial of arrests as a means of enforcing the duty of conscription would have been denied in an equal manner, for the entire population).  Clearly, this is capable of exacerbating the inequality with regard to bearing the burden of military service, and in any case the violation of the right to equality.  It seems to me that things are clear.

A proper purpose? Preliminary Notes

73. As is well known, section 8 of the Basic Law: Human Dignity and Liberty instructs us that where a violation of a constitutional right is found, as in our case, we must examine whether the amendment fulfills the conditions of the limitation clause. For the purpose of this examination, it is necessary to trace, inter alia, the purpose of the amendment.  This is because one of the tests that the amendment is obligated to meet is that according to which the infringement is done "in a law that is appropriate to the values of the State of Israel, which is intended for a proper purpose." In this context, there are contradictory indications.  On the one hand, Section 26B of the Defense Service Law, the purpose clause of the amendment, explicitly declares its purpose: "In recognition of the importance of Torah study, a special arrangement was hereby established, by temporary order, for the freezing of the detention of yeshiva students whose Torah is their art." On the other hand, in a response submitted on his behalf, the Cabinet Secretary claimed that "the purpose of the temporary order [...] was to prevent civil war and a decrease in the number of ultra-Orthodox enlistees in the IDF, " goals that were also mentioned in his letter to the Chairman of the Foreign Affairs and Defense Committee of June 26,2026, which set in motion the legislation of the amendment.
74. On the face of it, it was possible to deliberate on the question of what is the purpose of the amendment in question - the one that the legislature saw fit to anchor in Scripture, or whether these are the objectives on which the Cabinet Secretary was standing? But in the circumstances of the case, I am of the opinion that once the law explicitly defines its purpose, it is sufficient to do so, and this is the purpose that should be defined as the 'purpose of the amendment'. Moreover, as an institutional matter, when we are dealing with the interpretation of legislation, it seems to me, without further ado, that there are good reasons to prefer, as a rule, the explicit and clear position of the legislature, which was expressed in a book, over the position of the government with regard to the purpose of the amendment (I will emphasize that this is a different tension than that which arises when there is an incompatibility between an explicit or subjective purpose, and an implicit or objective purpose).  On the fact that, in general, great weight should be given to the purpose that is learned from the explicit language of the law, in the framework of formulating the purpose of the law at the interpretation stage (even if it is not necessarily a specific consideration), see, for example, and compare: Additional Hearing High Court of Justice5026/16 Gini v.  Chief Rabbinate of Israel [Nevo] (September 12,2017), paragraphs 19,24-25 of the judgment of President   Naor, and paragraphs 15-21 of my opinion; see also: High Court of Justice 9098/01 Genis v.  Ministry of Construction and Housing, IsrSC 59(4) 241,288 (2004)).
75. The purpose of the amendment, as defined by the legislature, therefore contains an abstract purpose - recognition of the importance of Torah study - and a concrete purpose, which is the practical expression of the abstract purpose in the context at hand, and its purpose is to freeze enforcement proceedings against conscription obligators whose Torah is their art. This purpose poses two challenges with regard to the ability to analyze the amendment through the lens of the limitation clause.  First, it is possible to reflect on the degree of connection between the abstract purpose and the concrete purpose; This, inter alia, is in view of the fact that the enforcement proceedings against members of the ultra-Orthodox public in this context are carried out in light of their evasion of the obligation to serve in the military; not for Torah study, G-d forbid.  If so, the question arises whether the suspension of these proceedings is indeed a concretization of the value of Torah study.  The second challenge concerns the fact that we are dealing with a case in which there is an identity between the concrete purpose and the means.  In other words, the concrete purpose of the suspension of enforcement proceedings against those who are obligated to enlist is also the means used by the amendment: "No arrest, investigation or enforcement proceedings shall be taken" against 'yeshiva students', as defined in the law, for offenses of evasion of enlistment, desertion or absence from service without permission (section 26G of the amendment).  This state of affairs is likely to raise a difficulty with regard to examining the proportionality of the amendment, since the bulk of this examination deals with the relationship between the means and the purpose.  I will emphasize in this context that there is obviously no difficulty, in terms of the constitutionality of the arrangement under examination, in the very existence of an overlap between the purpose and the means; the challenge relates only to the application of the tests of the limitation clause in a case such as this, and not to the arrangement itself.  In any event, these challenges will accompany us later in the analysis.
76. Let us begin with the first challenge. Given an abstract purpose and a concrete purpose, the connection between which is not necessarily close, what is the relevant purpose for the purpose of analyzing the tests of the limitation clause? The case law required various aspects of this question (see, for example: High Court of Justice 1030/99 Oron v.  Speaker of the Knesset, IsrSC 56(3) 640,665-664 (2002)).  In our case, both the analysis of the amendment in the light of the abstract purpose, and its analysis from the perspective of the concrete purpose, are possible, and in any case, lead to the same result.  For the sake of completeness, and in order not to find a deficiency, I will therefore walk both paths in parallel.
77. First, the abstract purpose is recognition of the importance of Torah study. Examining this purpose in our case is not simple.  As may be recalled, in previous incarnations of the issue of the enlistment of yeshiva students, it was determined that recognition of the importance of Torah study is a proper purpose in this context, but this is only within the framework of a balance with other purposes, first and foremost: reducing inequality in the burden of military service (alongside other purposes, such as increasing the participation of the ultra-Orthodox public in the workforce and creating an agreed-upon and gradual solution; see: High Court of Justice 6427/02, pp.  700-705; High Court of Justice 1877/14, para.  52).  Although, detached from the context, certainly, recognition of the importance of Torah study is a proper purpose, the question arises, is recognition of the importance of Torah study, as an exclusive purpose, a proper purpose for an arrangement in the current context, which has its place in the Defense Service Law? Specifically, it is possible to ask whether the exaltation of this purpose, in the context at hand, in such a terrible and difficult and bloody war, without taking into account at all the security purpose that is expressed in the needs of the IDF, or the need to reduce inequality in the burden of conscription, meets this test? I doubt it.  On the other hand, the claimant may argue that at this stage, the relationship between the purpose of the arrangement under consideration and other relevant purposes should not be taken into account.  In any event, I am prepared to assume that this is indeed a proper purpose in the context at hand.
78. Now, for the concrete purpose. The case law held that this purpose may be of great importance in the framework of the constitutional examination.  There are two reasons for this.  First, from a practical point of view, the examination is not conducted in a 'vacuum', but in the context of the violation of the constitutional right; this is its essence and the reason for its existence.  Therefore, the relevant purpose is "the purpose underlying the provision of the law that violates human rights", i.e., that which is at the basis of the specific, concrete provision (High Court of Justice 1661/05 Gaza Coast Regional Council v.  Knesset of Israel, IsrSC 59(2) 481,548 (2005) (hereinafter: the Gaza Coast case)).
79. Second, for the purpose of analyzing the terms of the limitation clause, the abstract purpose may sometimes give rise to difficulty, and in particular - it may be found to be ineffective for the purpose of a real examination: "It seems that the purpose of any norm can be presented at a level of abstraction that would make it possible to determine that it is a proper purpose (by using terms such as 'public security', 'public order', 'stability of the government' and so on). However, one should not be captivated by one formulation or another, and the substance of the matter must be examined" (High Court of Justice 7146/12 Adam v.  Knesset, paragraph 18 of the opinion of Justice   Vogelman [Nevo] (September 16,2013) (hereinafter: the Adam case)).  In other words, where the purpose of the legislation is formulated at the highest level of abstraction, the court is sometimes required to examine the arrangement itself, in practice, and to trace the issue it seeks to regulate, or to clarify the problem with which it is intended to be dealt with; That is, to examine the purpose in the concrete context under discussion.
80. In fact, this is required, at least to a certain extent, from the test of proper purpose itself. In accordance with our constitutional doctrine, this test has two levels: "One level examines the content of the purpose, the other level examines the degree of necessity for its realization" (High Court of Justice 5016/96 Horev v.  Minister of Transport, IsrSC 51(4) 1,52 (1997) (hereinafter: the Horev case); see also, for example: High Court of Justice 5304/15 The Medical Association of Israel v.  Knesset of Israel, para.  17 [Nevo] (September 11,2016)).  In some cases, in order to examine the degree of necessity for the realization of the purpose, it is necessary to examine the purpose in a context-dependent manner, in light of the concrete issue or problem that the arrangement under consideration is dealing with.  Otherwise, the test may become almost meaningless (for example, as noted above, based on a person's interest, the question of whether 'public safety' is a purpose that needs to be realized may prove to be particularly ineffective).

A proper concrete purpose? Application

81. I will therefore turn to the analysis of the concrete purpose. I will begin with the first level - "the content of the purpose".  I am of the opinion that the amendment in question does not meet the test of proper purpose, already on this level.  A purpose that deals with the exclusion of a certain population group from the enforcement of a criminal law that applies to it is a purpose that is not a legitimate purpose that the state authorities are entitled to act to realize.  By its very nature and nature, its violation of the rule of law is extremely severe, and it grossly violates one of the state's deepest obligations to its citizens - to use the coercive power entrusted to it, and only to it, in a fair and equal manner, without determining that the blood of members of a certain group is stained with the blood of others (see: Bavli, Sanhedrin 77a), or that the freedom of those is of greater value than that of others.  Even in the realm of broad implications, the end of recognizing this purpose as a legitimate purpose - who will remain? Tomorrow a certain party, representing an anonymous group, will demand that the tax laws not be enforced against the members of that group; the next day, a parliamentary party will demand non-enforcement against the public it represents with respect to another offense.  And where do we come from?
82. It seems to me that the difficult normative problems speak for themselves, and lead to the conclusion, quite simple, that this is not a proper purpose. I will do so for the purpose of analyzing this test, but more than necessary, I will note that the second level of the test - the one that deals with, if necessary, the realization of the purpose - is also not without difficulties.  As for this aspect of the proper purpose test, the halakha states that "'the more important the right that is violated, and the more severe the violation of the right, the stronger the public interest is needed in order to justify the infringement' [...].  When the infringement is a central right - such as the violation of human dignity - the purpose of the offending law will justify the infringement if the purpose seeks to realize a substantive social goal, or a pressing social need.  It is possible that infringements of less central rights will justify a lower level of necessity" (High Court of Justice 7052/03, p.  259; emphasis added - v.  ; see, for example: High Court of Justice 951/06 Stein v.  Superintendent Moshe Karadi, para.  18 (April 30,2006); High Court of Justice 6304/09 Lehav - Chamber of Self-Employed and Business Organizations in Israel v.  Attorney General, para.  107 [Nevo] (September 2,2010); High Court of Justice 1308/17 Silwad Municipality v.  Knesset, para.  63 [Nevo] (June 9,2020); For a critical analysis, which is important in this context, see: Gideon Sapir, "Balances, " Rivlin Book 301,317-320 (Aharon Barak et al., eds., 2025)).  A doctrine with a similar logic, perhaps a little more rigid, is also accepted in the Sea States:

"The degree of importance of the need may vary according to the nature of the right that is violated.  Thus, for example, in American law, in this regard, three levels of rights are distinguished.  At the highest level are freedom of speech, freedom of choice, freedom of movement, and the right to equality (with regard to a person's status as a resident and with regard to race).  With regard to these rights - which are perceived as fundamental rights - a purpose is appropriate if it is intended to achieve an essential goal (compelling state interest) or a pressing public necessity, or a substantial state interst.  In the case of other rights, a lower degree of necessity is required [...].  In Canadian law, the highest level of all human rights is required.  There is no need for us to take a position, if in Israel too, there is room to distinguish between different levels of scrutiny.  Suffice it for us to say that as in comparative law, here too the necessity of infringement of freedom of movement - a freedom that is at the highest level in the hierarchy of rights in Israel - is at the highest level" (Horev, pp.  52-53).

83. I will emphasize in this context that we are not dealing with a 'balanced' question, in the sense of who prevails over whom - the right or the social need. In other words, it is not necessary at this stage to examine whether the social need justifies, given the totality of the considerations, the infringement of the right (as is well known, this is largely the role of the proportionality tests, with an emphasis on proportionality in the narrow sense); This is a more lenient examination, which is a 'threshold condition', and whose purpose is to examine whether, on the face of it, there is a reasonable basis to think that this is an important or sufficiently pressing social need, which may establish justification for a violation of the right of the kind on the agenda.  After all, if that social need cannot at all establish, at least initially, justify a violation of the kind at hand, how can we see it as a proper purpose in the context at hand, of the violation of the right?
84. Thus, in our case, in light of the severe violation of the right to equality, as detailed above, we must examine whether "the purpose seeks to realize a substantive social goal, or a pressing social need." Does the issue of the detention of those who must conscript members of the ultra-Orthodox public establish a pressing social need, which may justify the harm of the kind we are dealing with? Indeed, this issue has been presented by the various parties as an urgent and wide-ranging issue that requires an immediate solution. Thus, for example, in the letter of the Cabinet Secretary to the Chairman of the Foreign Affairs and Defense Committee of June 26,2026, mentioned above, it was noted, inter alia, that "the legal advisor to the government [...] He instructed the IDF to carry out frequent arrest operations" against members of the ultra-Orthodox public who must be drafted, and that "the wave of arrests of yeshiva students and Torah students is causing a severe shock in the heart of the ultra-Orthodox public." Subsequently, when MK Bismuth, chairman of the Foreign Affairs and Defense Committee, presented the bill to the Knesset plenum for a second and third reading, he said that the amendment "seeks to halt the terrible erosion of the detention of Torah learners" (Minutes of Session 417 of the 25,268th Knesset (July 13,2026)).  The petition on behalf of Truth for Yaakov in Israel also mentions, among other things, "an extensive policy of arrests" and a "wave of arrests."
85. I do not take lightly the fact that the enforcement proceedings are indeed likely to arouse concern, at least in the hearts of some members of the ultra-Orthodox public - both because of the enforcement proceedings themselves, their implications, and their impact on the recognition of the importance of Torah study. But does this constitute an urgent social need, which may justify a severe violation of constitutional rights? In particular, we must ask, do the factual assumptions on which the initiators of the amendment were based, in favor of establishing the pressing social need - those concerned with that "wave of arrests" and the "terrible drift" of arrests of Torah students - resting on solid feet? The answer to this is no.
86. I will clarify why, and for this purpose I will provide some data. In an update notice submitted on June 30,2026 by the state's respondents in the framework of the High Court of Justice 5819/24, relevant data were presented (for the avoidance of doubt, no one disputed their validity):

"As of May 10,2026, the total number of non-commissioned evaders who have been declared evasives, or for whom an order 12 has been issued, out of all those designated for security service in the State of Israel, is 92,080.  According to military sources, about 80% of them belong to members of the ultra-Orthodox public [...].  In this context, it should be explained that the rest of the non-commissioned evaders, who are not members of the ultra-Orthodox public, are the number of evaders that have accumulated over the decades of the state's existence.  In other words, the phenomenon of evasion among the general public is a very limited phenomenon.  In addition, military officials estimate that in the near term, in view of the lack of consistent cooperation with the recruitment authorities, a further significant increase is expected in the number of non-commissioned officers [from among members of the ultra-Orthodox public - v.  S.] who will be declared evaders or in their case an order 12 will be issued" (emphases added - v.  S.).