NEW DELHI: Former Supreme Court judge Sanjay Kishan Kaul has criticised former Chief Justice of India D Y Chandrachud's approach to judicial appointments, alleging that he was "too deferential to the government".
In his forthcoming memoir Without Fear or Favour, Justice Kaul, while recounting a collegium meeting to fill six Supreme Court vacancies, says five names had been agreed upon in advance when Justice Chandrachud proposed a sixth candidate and considered checking 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 his book.
Speaking to news portal The Wire about his memoir, the former judge said that the collegium must resist executive pressure to safeguard judicial independence.
Asked whether the then CJI was trying to please the government or seeking prior approval, Justice 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."
"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.
"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," Justice Kaul said.
Justice Kaul, who retired in December 2023, writes that differences over dealing 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," Justice Kaul wrote in the book.
Asked about calling Justice Chandrachud "too deferential to the government on appointment matters," Justice Kaul said, "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
He also spoke about his objections to the transfer of a case concerning reconsideration of aspects of the Prevention of Money Laundering Act (PMLA) judgment from a bench headed by him to another bench.
He says cases should not be moved between benches because of apprehensions about how they might be decided.
Citing Kaul's yet-to-be-released memoir, the opposition Congress on Sunday claimed it raised "serious questions regarding the independence of the judiciary under the Modi government" and asserted that the institution tasked with upholding the Constitution must remain free from the pressures of those in power.
In a post in Hindi on X, Congress general secretary (in-charge communications) Jairam Ramesh said that Justice Kaul has highlighted "several concerning incidents - government interference in the appointment of judges, attempts to secure government approval prior to Collegium meetings, and the government's absurd questioning regarding the caste of a judge belonging to a minority community".
Matters that many were previously hesitant to discuss openly have now been documented by Justice Kaul with measured, deliberate language, Ramesh said.
"Equally grave is Justice Kaul's revelation that, after a bench he presided over raised the possibility of reconsidering certain aspects of a court ruling in a PMLA case, the matter was reassigned to a different bench without any consultation with him," he said.
"This points to the extent of the government's day-to-day interference in the functioning of the Supreme Court," the Congress leader alleged.
