What Justice Kaul’s book tell us about the judiciary

Justice Sanjay Kishan Kaul, in his forthcoming autobiography ‘Without Fear…’, writes that a PMLA case in 2023 “drove a wedge between the Chief Justice and me”.

Rarely, if ever, do former judges of the Supreme Court raise disturbing questions about their colleagues or the collegium system for choosing judges. However, that is precisely what Justice Sanjay Kishan Kaul has done in his forthcoming autobiography ‘Without Fear or Favour’.

Focussing on how the collegium functions. Kaul has worrying things to say. Until former CJI UU Lalit changed the practice, it seems judges were elevated to the Supreme Court without studying their judgments. (HT Archive)

What it suggests about former Chief Justice of India (CJI) DY Chandrachud is disquieting, even disillusioning. Kaulwas the senior most puisne judge under Chandrachud. He had known him for four decades and often refers to him as Dhan. This is why what he says needs to be attentively listened to.

Kaul writes that a Prevention of Money Laundering Act case in 2023 “drove a wedge between the Chief Justice and me”. He blames “the concentration of administrative power in the office of the Chief Justice, exercised without adequate checks and, at times, under pressures that had nothing to do with the merits of the case or the competence of the judge.”

Here’s the nub of the story. “One morning I was called to the Chief Justice’s chamber, where Justice Khanna also happened to be present along with him and asked whether I really wished to go on with the matter … it was then put to me that caution might be the wiser course and that perhaps I should take a middle path.” Kaul doesn’t spell out the precise message Chandrachud was seeking to give.

Something similar happened when Kaul was hearing a case concerning the transfer of four judges of the Gujarat High Court. This was just before his retirement. Suddenly the matter was deleted overnight. Kaul’s conclusion is disquieting: “The Chief Justice was under some pressure.” Kaul doesn’t specify but one can assume it’s from the government.

Even worse is what happened when a collegium meeting was selecting judges for elevation to the top court, according to Kaul. Just look at how Chandrachud ostensibly acted. “The Chief Justice drew me aside into a separate room and wondered aloud whether he should telephone out to check the government’s view … I told him to see sense. He could not, in the middle of a collegium, do such a thing.”

Kaul’s conclusion appears to be devastating. “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. That sends the wrong signal … I believed he was too deferential to the government on appointment matters.” If Kaul’s story is correct Chandrachud was, in fact, undermining the collegium system.

Let me now focus on how the collegium functions. Kaul has worrying things to say. Until former CJI UU Lalit changed the practice, it seems judges were elevated to the Supreme Court without studying their judgments. “No structured mechanism existed for collecting and analysing judgements before considering appointments”. This is simply bizarre.

Kaul seems to confirm that Justice Akil Kureshi’s name was not recommended for fear the government would oppose it. So, it seems, recommendations were tailored according to the government’s tastes and preferences. Equally distressingly, the collegium was often under pressure to make appointments the government wants. On one occasion the government wanted an unsuitable candidate to be made chief justice of one of the larger high courts. The collegium had to appoint him chief justice of a smaller high court to get the government to back off. But he was still an unsuitable candidate.

On another occasion, the collegium wanted to elevate a senior judge whom it considered “competent and with a good reputation”. The government asked “whether additional representation of minority faiths was really required”. But that’s not all. “A further query, voiced by the Chief Justice (followed) … the government wanted to know which caste the candidate’s family had belonged to before they converted to another faith.”

Perhaps this is why Kaul concludes the National Judicial Appointments Commission “ought to have been given a chance to work rather than being rubbished immediately by the judiciary”. But how does one explain Chandrachud’s apparent pusillanimity? Can the chief justice, who cannot be removed except by impeachment, come under pressure? If he does, what does it tell us about our judiciary?

Karan Thapar is the author of Devil’s Advocate: The Untold Story. The views expressed are personal