“There is a difference between consultation and what I came to regard as pre-approval,” says former Supreme Court judge Sanjay Kishan Kaul, who calls then CJI D.Y. Chandrachud too deferential to the government on appointments. Justice Chandrachud says he cannot comment without reading the book, and that the government has a legitimate role.
New Delhi: In his forthcoming memoir, Without Fear or Favour, former Supreme Court judge Sanjay Kishan Kaul recounts an episode in which he says the then Chief Justice of India D.Y. Chandrachud considered telephoning the government about a last-minute sixth candidate for the Supreme Court, and describes the former CJI as “too deferential to the government” on judicial appointments. Justice Chandrachud has responded that he cannot comment in detail without reading the book.
The criticism has surfaced around the time Justice Chandrachud, speaking recently at the 55th foundation day of the University College of Medical Sciences (UCMS) in Delhi, warned that “everybody wants to bring down every institution in democracy.” His speech did not refer to the memoir.
Consultation or pre-approval?
Justice Kaul draws a line between consulting the executive and seeking its approval before the Collegium formally considers a name:
“There is a difference between consultation and what I came to regard as pre-approval.”
He said the practice of discussing names with the government in advance had happened “before and after,” that Justice Chandrachud believed “this is how it had been happening,” and that he had tried to dissuade him from discussing everything beforehand. He warned that such consultation could set a precedent that later Chief Justices, particularly those with shorter tenures, might find hard to reverse, and said the Collegium must resist executive pressure to protect judicial independence. Justice Kaul has clarified that his criticism concerns Justice Chandrachud’s administrative approach and dealings with the government, not his judicial ability. He has also objected to the reassignment of a PMLA matter from a Bench he headed.
An episode of the sixth name
Justice Kaul served on the Collegium under Justice Chandrachud from June 2022 until his retirement in December 2023. By his account, five names had been agreed upon in advance at a meeting to fill six Supreme Court vacancies when the Chief Justice proposed a sixth at the last minute. He writes:
“The Chief Justice drew me aside into a separate room and wondered aloud whether he should telephone out to check the government’s view.”
Recounting his reply in an interview with The Wire’s Karan Thapar, Justice Kaul said, “I said that name is not acceptable to me and will not be acceptable,” adding that the other members also opposed the name.
The former CJI’s answer
Justice Chandrachud said he could not comment in detail without reading the book. He described his Collegium meetings with Justice Kaul as respectful, said he did not recall any recorded dissent in the Collegium’s resolutions, and said the government has a legitimate role in appointments and remains in dialogue with the Chief Justice.
What the Congress has said
The Congress, citing the memoir, said it raised “serious questions” about judicial independence. Party leader Jairam Ramesh alleged government interference in appointments and attempts to secure government approval before Collegium meetings. These remain the party’s allegations.
“Institutions matter”
At the UCMS event, Justice Chandrachud listed among his life lessons that “institutions matter,” telling the audience: “We are today living in an age where everybody wants to bring down every institution in democracy. Remember a society, a society survives by institutions.” He also recalled the Supreme Court’s attention to doctors’ safety in the RG Kar case during his tenure.
How the Collegium works, and what is disputed
Under the Collegium system, the Chief Justice and the senior-most judges of the Supreme Court recommend appointments to the higher judiciary, which the government notifies. The extent of informal consultation with the executive before recommendations are finalised has long been debated. Justice Chandrachud’s tenure has also drawn criticism from Senior Advocate Dushyant Dave, who pointed out that none of the 17 Supreme Court appointments made during that period was a woman.
The account in the memoir is Justice Kaul’s version of confidential Collegium deliberations; it has not been independently verified, and Justice Chandrachud has not accepted it.