Ex-SC judge calls former CJI 'too deferential', flags govt pressure on Collegium

Former Supreme Court judge Sanjay Kishan Kaul has criticised former Chief Justice of India DY Chandrachud for being “too deferential” to the government on judicial appointments, saying the collegium must resist executive pressure to protect judicial independence.

In his forthcoming memoir, Without Fear or Favour, Justice Kaul recounts differences with Chandrachud over the appointment of judges to the Supreme Court, alleging that names were discussed with the government even before formal collegium deliberations.

Recalling a collegium meeting to fill six vacancies in the Supreme Court, Kaul said five names had been agreed upon in advance when Chandrachud proposed a sixth candidate and wondered whether he should check the government's view.

“The Chief Justice drew me aside into a separate room and wondered aloud whether he should telephone out to check the government's view,” Kaul wrote in the book.

He drew a distinction between consultation with the government and seeking its approval before the collegium had formally considered the names.

“There is a difference between consultation and what I came to regard as pre-approval, seeking the government's nod before the collegium had even formally deliberated,” he wrote.

In an interview with The Wire, Kaul said Chandrachud had the intellectual depth, ability and work ethic to handle judicial responsibilities. However, he felt the former CJI had been more accommodating than necessary in dealing with the government on administrative matters.

“On administrative issues, there was just, I think, too much of a discussion with the government,” Kaul said.

He clarified that he did not believe Chandrachud was trying to please the government. Instead, he was concerned about the practice of discussing judicial appointments with the executive before formal collegium meetings.

Kaul said he had opposed the sixth name proposed by Chandrachud, arguing that other collegium members would not accept it either. He also suggested that the government might already have given its approval to the names, including the sixth candidate, before the meeting.

“This has become, unfortunately, a practice of names being discussed in some kind of a previous discussion with the government,” he said

Kaul expressed concern that such a practice could constrain future Chief Justices, particularly those with shorter tenures, by creating an expectation that judicial appointments would be handled in the same way.

He said he had expected Chandrachud to take a firmer stand in dealing with the government, given his position and the trust placed in him.

“We should have been more firm, and that's what my view was,” Kaul said, referring to judicial appointments.

Differences over judicial appointments
Kaul, who retired in December 2023, served on the Supreme Court Collegium under Chandrachud from June 2022. He said their differences over how to engage with the executive strained their relationship.

He also referred to the controversy surrounding the National Judicial Appointments Commission (NJAC), introduced by the government in 2015 and subsequently struck down by the Supreme Court. Kaul said the proposed mechanism could have been discussed and refined rather than rejected without exploring possible modifications.

The former judge also recalled efforts to expedite judicial appointments through timelines laid down in an earlier judgment by a three-judge bench of which he was a member. He said a contempt petition was filed over delays, but he issued notice to prod the government into making the appointments.

PMLA case and concerns over bench transfers
Kaul also spoke about his objections to transferring a case concerning the reconsideration of aspects of the Prevention of Money Laundering Act (PMLA) judgment from a bench headed by him to another bench.

He said cases should not be transferred between benches because of apprehensions about how they might be decided.

Asked whether Chandrachud had advised him to be cautious and take a middle path in the PMLA matter, Kaul said concerns had been raised about why he was taking up the case close to his retirement.

Kaul said the matter had come before him earlier but was delayed after the government sought more time. He rejected the suggestion that he should avoid proceeding with it because he was nearing retirement.

He said he had told Chandrachud and then Justice Sanjiv Khanna that he had never taken a middle path in his judicial career when he believed a particular course of action was right.

Following the discussion, Kaul said he and Khanna proceeded to the courtroom to continue the hearing.

Congress flags concerns over judicial independence
The Congress on Sunday cited Kaul's forthcoming memoir to raise concerns about judicial independence under the Narendra Modi government.

In a post on X, Congress general secretary Jairam Ramesh referred to the allegations of government involvement in judicial appointments, discussions seeking the government's approval before collegium meetings and questions raised by the government about the caste of a judge from a minority community.

Ramesh also alleged that the account concerning the PMLA case pointed to interference in the day-to-day functioning of the Supreme Court.

Kaul further criticised the Supreme Court's administrative processes, saying the Chief Justice's role as master of the roster left limited room for consultation with fellow judges.

He observed that several high courts had better mechanisms for discussion on administrative matters, while the Supreme Court remained largely dependent on the registry and the Chief Justice for such decisions.