What Former Supreme Court Judge Sanjay Kishan Kaul Reveals About Judicial Appointments

Critique of Judicial Appointments

New Delhi: Sanjay Kishan Kaul, a former Supreme Court judge, has openly criticized the approach of ex-Chief Justice D Y Chandrachud regarding judicial appointments, claiming he was excessively accommodating towards the government.

In his upcoming memoir titled 'Without Fear or Favour', Justice Kaul recounts a collegium meeting aimed at filling six vacancies in the Supreme Court. He notes that while five candidates were pre-approved, Justice Chandrachud suggested a sixth candidate and contemplated consulting the government for their opinion.

Kaul recalls, "The Chief Justice took me aside and pondered whether he should reach out to the government for their input."

He further elaborates, "There’s a distinction between consultation and what I perceive as pre-approval, where the government’s consent is sought before the collegium has even formally discussed the matter."

In an interview with a news portal, Kaul emphasized the importance of the collegium resisting executive influence to maintain judicial independence.

He stated, "There are two sides to justice: the judicial and the administrative. I have confidence in Justice Chandrachud's intellectual capabilities and dedication, but I felt he was overly compliant in his dealings with the government."

Kaul expressed concern over the extent of discussions with the government on administrative matters, stating, "I believe there was too much dialogue with the government on these issues." When asked if Justice Chandrachud was attempting to appease the government or seeking prior approval, Kaul responded, "It wasn’t about pleasing the government; rather, it seemed he had already discussed the names with me beforehand."

He continued, "We had settled on five names, and I assumed the collegium would agree with the other members. However, the sixth name was introduced at the last moment, which I found unacceptable."

Kaul insisted that he informed Chandrachud that the collegium would likely reject the sixth name, as he was aware of the other members' opinions. He noted, "This has unfortunately become a norm, where names are discussed in advance with the government."

He expressed his discontent with this practice, stating, "This has been ongoing, which is troubling. When the government proposed the NJAC (National Judicial Appointments Commission) in 2015, we should have engaged in discussions to refine it."

Kaul mentioned that there were high expectations from Justice Chandrachud, and he had offered his support at the start of his tenure. However, he acknowledged that their thought processes differed.

He asserted that in dealing with the government regarding judicial appointments, a firmer stance was necessary. Kaul recalled a previous judgment where he attempted to establish timelines for judicial appointments, indicating that he had issued notices to prompt the government into action.

Having retired in December 2023, Kaul noted that his differing views on executive interactions strained his relationship with Justice Chandrachud, with whom he served on the Collegium starting June 2022.

When asked about his comments on Chandrachud being 'too deferential', Kaul remarked, "He believed this was the norm, but I felt that with a chief justice of his caliber and a two-year term, he should have set a precedent for future justices, who may have shorter tenures."

Kaul warned that the government might become accustomed to a specific approach before Supreme Court appointments, which is why he sought to discourage Chandrachud from pre-discussing matters.

He also expressed his concerns regarding the transfer of a case related to the Prevention of Money Laundering Act (PMLA) from a bench he led to another, arguing that cases should not be reassigned based on fears of their outcomes.

The opposition Congress party has claimed that Kaul's memoir raises significant concerns about judicial independence under the Modi administration, asserting that the judiciary must remain free from governmental pressures.

In a post on X, Congress general secretary Jairam Ramesh highlighted Kaul's revelations about government interference in judicial appointments and the absurd inquiries regarding the caste of a minority judge.

Regarding Kaul's comments on the PMLA case, Ramesh alleged that it indicates the government's daily interference in the Supreme Court's operations.

When asked if Justice Chandrachud had advised him to be 'cautious' in the PMLA case, which is still pending, Kaul explained, "I was informed that some legal professionals were questioning why I was addressing this matter close to my retirement."

He clarified that he had previously taken up the case and that the government had requested additional time, leading to its consideration shortly before his retirement. Kaul stated, "If I were to compromise my integrity after 22 years on the bench, I would have failed in my duties."

He emphasized that he had never taken a middle path in his judicial career, stating, "If I believed in something, I pursued it. After our discussion, Justice Khanna and I proceeded to the courtroom to continue the hearing."

On the topic of the Chief Justice's role in the Supreme Court, Kaul noted that high courts often have better discussion mechanisms in administrative matters, while the Supreme Court tends to be more registry-focused.