Former Supreme Court Judge Critiques Judicial Appointment Practices

Concerns Over Judicial Independence

New Delhi, Oct 25: Sanjay Kishan Kaul, a former judge of the Supreme Court, has expressed his discontent with the approach taken by former Chief Justice D Y Chandrachud regarding judicial appointments, suggesting that he was excessively accommodating towards the government.

In his upcoming memoir titled Without Fear or Favour, Justice Kaul reflects on a collegium meeting aimed at filling six vacancies in the Supreme Court, where five candidates had seemingly been pre-selected.

He recounts that Justice Chandrachud suggested a sixth candidate and contemplated consulting the government for their opinion.

“The Chief Justice pulled me aside and pondered whether he should reach out to the government for their input,” Kaul noted in his memoir.

In an interview with a news portal, he emphasized the necessity for the collegium to resist any executive influence to maintain judicial autonomy.

When questioned if the former Chief Justice was attempting to appease the government or seeking prior consent, Kaul clarified, “It wasn’t about pleasing the government; rather, he had previously discussed the names with me.”

Having retired in December 2023, Justice Kaul mentioned that disagreements on handling executive interactions had strained his relationship with Chandrachud, with whom he served on the collegium starting June 2022.

“There’s a distinction between consultation and what I perceived as pre-approval, where the government’s consent was sought before the collegium had even formally discussed the matter,” Kaul stated.

He elaborated, 'We had settled on five names, and I believed the collegium would be agreeable to the other members. However, this sixth name was introduced at the last moment, and I expressed that it was unacceptable to me.'

"He wanted me to support the name, but I indicated that even if I did, the others would not agree. I was confident that this would not pass because I understood the perspectives of the other collegium members. Perhaps he had already secured some form of approval for the other names, including the sixth," Kaul explained.

"Regrettably, this has become a norm where names are discussed in prior conversations with the government," he told senior journalist Karan Thapar.

"This practice has persisted, which is concerning. When the government proposed the NJAC (National Judicial Appointments Commission) in 2015, we could have engaged in discussions to refine it," Justice Kaul remarked.

"There’s a clear difference between consultation and what I came to see as pre-approval, where the government’s consent is sought before the collegium has even formally deliberated," he reiterated in his book.

Regarding his characterization of Justice Chandrachud as “too deferential to the government on appointment issues,” Kaul stated, "He believed this was the established practice, while I felt that with a chief justice of his caliber and a two-year term, he should set a precedent that would not lead future justices into a similar pattern due to their shorter tenures."

“The government would become accustomed to a specific method before Supreme Court appointments, which is why I aimed to dissuade him from pre-discussing everything,” he added.

In a related development, the Congress party referenced Kaul’s forthcoming memoir to raise concerns about the judiciary's independence under the current government, asserting that the institution responsible for upholding the Constitution must remain free from governmental pressure.