Justice Sanjay Kishan Kaul (Retired) has long been known for his keen interest in appointing judges to fill existing vacancies in the judiciary and ensure the smooth functioning of the economy.
But when he brought up the pending judicial appointments at a meeting with Prime Minister Narendra Modi, saying that clearing them would send a good signal and help the judiciary, and that the judiciary is the body that creates the checks and balances and is given a particular role in the constitutional scheme, he was told he may not be right.
"So I just said, I believe I'm right, but please have a look into it. And the dialogue went on for a couple of minutes. And I felt maybe I was pushing the Prime Minister of the country too hard."
So I said, "You know, Prime Minister, I'm pushing this. And I can say this because I don't want anything after retirement." He said, "I know that," Justice Kaul said, referring to his autobiography Without Fear or Favour.
In this, Kaul stands out from many of his peers, including Chief Justice Ranjan Gogoi, whom he questioned for accepting a Rajya Sabha nomination.
As he writes in his book, "I once asked him why he had accepted a seat in the Rajya Sabha following his retirement. He said that if such a thing is offered, one must not refuse it as a matter of duty. That is his perspective. Mine is that it's simply not worth one's while."
In his interview to The New Indian Express (TNIE), he says: "I shared a good equation with Justice Gogoi. He backed my elevation. He chose me to sit with him first when he was Chief Justice. We had one difference of views, again on the elevation of judges. The expectation was that he'd be a very good Chief Justice because he was a tough man, a firm man, an even-handed man, which is what is required. And one episode just weakened him (he is referring to the case of sexual harassment against him). He was very aggrieved by what had happened. He thought the truth was the other way....Parliament was not his place, I thought. Judges train differently. He's not meant to deal with the rough and tumble of Parliament, more so in these days."
The book has made news because of its implicit criticism of "Dhan", retired Chief Justice Dhananjay Chandrachud, his batchmate from St Stephen's College, Delhi.
Justice Kaul says, "We worked on many things together, and I've said that it was my job to support him, yet question him if I did not seriously agree with him, but not to disagree with everything. I think the initial period went quite well. I could walk into his chamber even when I disagreed, and when something was wrong. There were some troubles from July onwards (Kaul demitted office in December 2023). The last two months were a little troublesome. What troubled me most was the judges' appointment case being taken out of my court in the last week."
He has been far more candid in the book, writing that he 'believed Justice Chandrachud was too deferential to the government on appointment matters' and he believes that the 'government respects judges who respect themselves'.
Justice Kaul also reflects on his tenure as Chief Justice of the Madras High Court between 2014 and 2017, which he describes as possibly "the most difficult court at that time."
"I went, not very happily, and I've said so. It was possibly the greatest challenge, with caste and community considerations rife." Of the Madras High Court now, he says: "I believe largely the culture of strikes, especially in the high courts, doesn't exist. So my great satisfaction is it's not only that I feel I could do something and do it in collaboration with the judges, because no chief justice, I believe, can work alone. He has to have the backing of his judges. And I think I had the backing of, I would say, more than 95 per cent of my judges that do what you want, but bring discipline to the court. So I could take liberties and make more difficult decisions with their support, and slowly, I think that all that has disappeared. It's a very good working court, and now the court has some very good youngsters."
There's a sense in the book that he felt his own elevation to the Supreme Court was delayed, somewhat intolerably. In a way, it affected his chances of being Chief Justice.
He says: "See, Dhananjay was already in the Supreme Court. So, in the collegium's wisdom, we were both people who were having some parallel tenures. He was appointed a judge before me. I was appointed Chief Justice before him. So these things go on. And not everybody becomes a cabinet secretary or a chief of staff. That's a matter, I think, of fortune. But the then Chief Justice thought he would like to get him. He got him. That's fine. But after that, not only was my elevation delayed, but the whole elevation process was delayed because I believe the other collegium members felt that something right had not been done to me and that further wrong should not be done to me. So the tussle went on for five months, and no elevation took place. And the Chief Justice demitted office without appointing seven judges. In the first list itself, I was the senior most to come in. In all-India seniority, I was very, very senior in the first five or six at that stage of time.''
Does he regret that?
He says: "Everybody would have an ambition to rise to the top. But I don't believe that was the be-all and end-all. After all, when I became a judge, nobody guaranteed me a seat on the Supreme Court. Okay, my position in the High Court was such that I was about five years younger than the next-youngest judge. So I knew that I would have a fair amount of tenure as a Chief Justice of the High Court. That's all one can look to for perspective. These positions are only career orientations. So I saw it as a great opportunity to be J1 for 14 months. That's the role that the system had assigned to me. I must perform that role. And there were expectations and I think high expectations from Dhananjay.''
His abiding concern now is his home state of Kashmir, where he had said there should be a Truth and Reconciliation commission on the lines of South Africa. "One of the big grievances I found of the Kashmiri Pandit community is that there is no acknowledgement of what they've been through. In contemporary times, both in the media and politically, for various reasons, it (their exodus) hasn't been given due prominence. Maybe politically, they're not significant in terms of numbers because I believe the community worldwide may not be more than about nine lakh or so. So it's not a vote bank. A large part, maybe 50 per cent, of those who were in the Valley were compelled to migrate. So the circumstances in which they were compelled to migrate and non-acknowledgement of that, I believe, is one of the greatest grievances they have, and it helps at times when people come up front, saying this happened.''
He added: "So I think that that's some opportunity. I would say the political class should look at it because it's a recommendation that has been made, and Justice Sanjeev Khanna, in his opinion, concurred with both Justice Chandrachud and me. So at least two of the five judges have directly proposed this commission as a suggestion to the government."
There has been no progress on this, he admits, though he insists he has found many people wanting to see the community have a presence in the Valley again.
"I met with the next generations of my neighbours and others. So, there is a positive movement forward. But I don't think the community will suddenly come back. People who have settled away 30 years ago, maybe in the US, maybe in different parts of the country, will not come back. But people like to keep their roots. You go from a village to a city; you keep your village home. Similarly, if the places where they have stayed earlier are secure enough, then I'm sure a lot of them would like to keep that aspect and maybe spend shorter times there, come there, and interact. But they must feel secure. And I don't know how much of it can be done if you only create a kind of closed spaces or ghettos. That may be fine security-wise, but the comfort level has to be able to see where their forefathers lived.''
The issue is of healing wounds, he says, not only for Kashmiri Pandits, but also for the other communities, including the Muslim community in Kashmir. When the Kashmiri Pandits left, and the situation became almost out of hand, the army moved in. The army is meant to fight wars. They are not meant to control law and order. So, while fighting a war, some things may not have gone right. And there's another section which feels that, you know, their grievances have not been acknowledged, he adds.
Does he fear a backlash for his remarks? He smiles: "They can go on the website and check my assets. They were on the website in Delhi, in Punjab, Haryana, and in Chennai. I've been fortunate in inheriting wealth. I believe I could take the judgeship because I had that comfort level. When I had asked for some time to decide, the late Chief Justice AS Anand met me at a social gathering and said, "Why haven't you given your consent?" And I said, " Sir, there are some concerns I'm looking at." He said, "You can afford to be a judge. What is your problem?"
Those words changed the course of his life.