‘Too deferential to govt’: Ex-judge questions Chandrachud on SC appointments

NEW DELHI: Former Supreme Court judge Justice Sanjay Kishan Kaul has questioned former Chief Justice of India (CJI) D Y Chandrachud's approach to judicial appointments, alleging that he was "too deferential to the government".

He also expressed concern over the practice of discussing candidates with the executive before formal Collegium deliberations.In his forthcoming memoir, Without Fear or Favour, Justice Kaul recounts a Collegium meeting to fill six vacancies in the Supreme Court, during which five names had been agreed upon in advance. He alleges that Justice Chandrachud proposed a sixth candidate at the last minute and considered seeking the government's view on the appointment."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 his book.Speaking to news portal The Wire about his memoir, Kaul said the Collegium must resist executive pressure to safeguard judicial independence.Asked whether Justice Chandrachud was trying to please the government or seeking its prior approval, Kaul said, "I don't think it was a question of pleasing the government, but what had happened was that he had discussed the names with me earlier.

"We had agreed on five names, and I thought the collegium would be quite okay with the other members of the collegium, and this (sixth) name was propped up at the last minute with me while going to the collegium meeting. I said that name is not acceptable to me and will not be acceptable."He said Justice Chandrachud wanted him to support the additional candidate, but he believed the other Collegium members would also oppose the proposal."And well, he wanted me to collaborate and go ahead with the name. I said even if I do that, the others will not. I believe, and that's what happened in the meeting. I told him this will not get through because I know the views of the other collegiate members. Maybe he had already taken some kind of an approval for the other names, including the sixth name," Kaul said.He expressed concern over the practice of discussing judicial appointments with the government before formal Collegium meetings."So this has become, unfortunately, a practice of names being discussed in some kind of a previous discussion with the government," he told senior journalist Karan Thapar."It has been happening, I think, before and after, which is what troubles me. That's why I have written that when the government introduced the NJAC (the National Judicial Appointments Commission) in 2015, we would at least have sat across the table and discussed it.

It could have been fine-tuned. It could be modulated," Kaul said.Justice Kaul, who retired in December 2023, wrote that differences over how to deal with the executive strained his relationship with Justice Chandrachud, under whom he served on the Collegium from June 2022."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," Kaul wrote in his memoir.Explaining why he considered Justice Chandrachud "too deferential to the government on appointment matters," Kaul said the practice could create difficulties for future Chief Justices, particularly those with shorter tenures."Well, he believed that this is how it had been happening, and I was of the view that you, with a chief justice like you, and with two years' tenure, and with your own merit and the trust, if you do this, the successors would have a problem in not following this practice because they have shorter tenures.""And the government would get used to a particular methodology before appointments to the Supreme Court were made, and that's why I endeavoured to discourage him from discussing everything beforehand," Kaul said.The former judge also raised objections to the transfer of a case concerning the reconsideration of certain aspects of a Prevention of Money Laundering Act (PMLA) judgment from a bench headed by him to another bench.

He argued that cases should not be reassigned because of apprehensions about how a particular bench might decide them.Congress flags judicial independence concernsThe Congress on Sunday raised concerns over the independence of the judiciary under the Narendra Modi government, citing revelations in the forthcoming memoir. The party asserted that the institution responsible for upholding the Constitution must remain free from pressure exerted by those in power.Congress general secretary in-charge of communications Jairam Ramesh shared a media report quoting the pre-publication manuscript of Kaul's memoir, Without Fear of Favour, which reportedly states that Chief Justice of India (CJI) Justice D Y Chandrachud was "too deferential to the Government" on judicial appointments.In a post on X, Ramesh said, "A book by former Supreme Court judge Justice Sanjay Kishan Kaul has raised serious questions regarding the independence of the judiciary during the tenure of the Modi government."Ramesh said Kaul had highlighted several concerning incidents, including alleged government interference in judicial appointments, attempts to secure government approval before Collegium meetings and the government's questioning of the caste of a judge belonging to a minority community.He added that issues many had previously been hesitant to discuss openly had now been documented by Kaul in measured and deliberate language."Strikingly, a former Chief Justice of India (CJI) has not denied that discussions with the government take place prior to judicial appointments. When former CJI Justice Chandrachud acknowledges that the government engages with the CJI and plays a role in the appointment process, the concerns surrounding judicial independence become even more profound," Ramesh said.

The Congress leader also flagged Kaul's account of an incident involving a case under the Prevention of Money Laundering Act (PMLA).

According to Ramesh, Kaul revealed that after a bench presided over by him raised the possibility of reconsidering certain aspects of a court ruling in the case, the matter was reassigned to another bench without consulting him."This points to the extent of the government's day-to-day interference in the functioning of the Supreme Court," Ramesh said.Questioning the implications of the alleged incidents, he said, "When there is pressure to obtain government approval for judicial appointments, and when benches hearing sensitive cases are altered, one must ask -- in the interest of safeguarding democracy -- if this does not constitute pressure on the judiciary and an erosion of its independence, then what does?"Emphasising the importance of judicial independence in a democracy, Ramesh said, "The institution tasked with upholding the Constitution must remain free from the pressures of those in power. In a democracy, the independence of the judiciary is not merely an option; it is an absolute necessity," Ramesh asserted.