Minority judge blocked, Dhana's tactics, government's pre-approval: Justice SK Kaul reveals inner workings of Collegium

The questionable working of the Supreme Court Collegium - the body responsible for appointing judges to the higher judiciary - has been laid bare by one of its former members and retired Supreme Court Justice Sanjay Kishan Kaul.

In his memoirs titled Without Fear or Favour, the former judge most startlingly reveals that ex-Chief Justice of India (CJI) DY Chandrachud, as head of the Collegium, would seek the Central government's stance on potential appointments before consulting with the rest of the judges on the Collegium.

The Collegium system was preserved by the Supreme Court in a bid to maintain judicial independence, free from executive influence. However, Justice Kaul seems to think that political considerations have long since crept, calling the method into question.

In a scathing indictment of the system, he writes,

"The collegium system worked well enough in the initial years, but over time, the judges have at times outdone the politicians. I have often been asked whether it is not altogether for the good that politicians have been excluded from the appointments process, and I have always replied to this slightly naive premise that ‘Judges ki rajneeti, rajnitigyon ki rajneeti ko mat kar deti hai. (The politics of the judges outdoes the politics of the politicians themselves.)’."

Justice Kaul, who has known former CJI Chandrachud for over four decades, said that his relationship with the man he calls 'Dhana' had strained during his final years as a Supreme Court judge. He attributes this to one thing, more than others:

"I believed he was too deferential to the government on appointment matters."

He prefaces his opinion by saying that he was not one among those who believed that the government should not have any say in judicial appointments. He writes,

"Total purdah cannot be the standard for independence, and blockages are bound to occur and do occur when consultation breaks down. But 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. Any political class will always assert itself if you give them a wedge in the door. This is not in any sense a partisan matter but simply a question of the inevitable institutional dynamics of power."

He also recalls an incident where Justice Chandrachud held court till 9 PM just to avoid a Collegium meeting where the then CJI and other judges were waiting for him for hours together.

"Although I maintained a good working and personal relationship with him, I considered this an atrocious way to treat the chief justice and one’s colleagues, and I said as much to him in a later encounter when he walked into my chamber after he had been sworn in. After some discussion, I pointed out to him that we were not vella (jobless) to keep waiting for him."

Justice Kaul goes on to say that the government's tendency to interfere stemmed from the Supreme Court's striking down of the National Judicial Appointments Commission (NJAC) in 2015. In that judgment, the Court denied the government's proposal of an NJAC - comprising the Chief Justice of India, the two judges next in seniority, the Union Law Minister and two eminent personalities chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition - to appoint judges to the Supreme Court and the High Courts.

"The collegium system had its problems, and the last years of my tenure starkly demonstrated them: the opacity, the concentration of power and the susceptibility to government pressure through informal channels. The political system had not lived down the Supreme Court’s rejection of the NJAC. Even today, I think they have not accepted it. It is one of the reasons for the pressure I witnessed in the form of blockages in clearing names, insistence on pre-approvals and quiet vetoes exercised through the return of files."

Justice Kaul also narrates a few examples of the opacity with which the Collegium functions. In his own case, he was transferred to the Madras High Court, known then to be a 'problematic' High Court not least because of constant clashes between lawyers and police.

"To be perfectly frank, the posting was widely perceived, in legal circles in Delhi and beyond, as a punishment posting," he writes.

Justice Kaul, then Chief Justice of the Punjab & Haryana High Court for a year-and-a-half, was not keen on being transferred, given his pending work.

"I sensed that there were other gears turning, about which my interlocutors were not quite being open with me. I felt that perhaps there were others whom the collegium wanted to bring to the Supreme Court and that my being sent to Chennai was a way to forestall my own claim to elevation for some time."

He recalls a discussion with then CJI RM Lodha, who asked him for alternatives to be transferred as Chief Justice of the Madras High Court. After the CJI said no to all the names Justice Kaul suggested, the former said, "We think that either you or Dhananjay must go," Justice Kaul writes,

"Justice Chandrachud had taken over as the Chief Justice in Allahabad just six months ago. It was obvious that he would not be moved, nor should he have been. I told Justice Lodha, simply, ‘In that case, sir, it looks like it’s my turn'."

While in Madras, Justice Kaul says he came across many suitable candidates for elevation that were turned down for bizarre reasons. On Senior Advocate NL Rajah, he recounts a conversation with a former CJI who wasn't even aware that his Collegium turned down Rajah's name.

"Another capable candidate had been lost to the bench for good. It drove home the point to me of how flawed and opaque the collegium process had become. People in the running for a high constitutional office were being rejected (or sometimes, accepted) for reasons the selectors did not even care to remember."

Reference in the book is also made to the stalled elevations of Senior Advocates Saurabh Kirpal and Sanjoy Ghose.

The memoirs also recalls a Dalit district court judge who was competent and honest, but was not considered for elevation because a consultee judge was displeased with him.

"The consultee judge had visited the district where this officer was posted. He had felt – rightly or wrongly – that the bandobast had been insufficient. On this basis, the consultee judge had recorded an adverse remark, and the collegium, not knowing the background or caring to enquire into the details, had acted on it. It was a grotesque outcome. A man’s career had been curbed not because of any failing in his work or his integrity, but because a visiting judge felt he had not been given enough attention."

Another failed elevation while Justice Kaul was a member of the Collegium concerned a candidate from a minority faith. The government, Justice Kaul reveals, had a bizarre reservation.

"Officially, the government queried whether additional representation of minority faiths was really required on the court, pointing to certain judges from other religious minorities who were already serving. I was troubled by this logic. ‘We had agreed on this name,’ I said. The judge happened to be from a state that, at that time, was in fact under-represented on the Supreme Court."

He added that CJI Chandrachud shared some view which the government had conveyed and it provoked him.

"Then came a further query, voiced by the chief justice, which I found rather bizarre: The government wanted to know which caste the candidate’s family had belonged to before they converted to another faith. How on earth could we possibly have known that?...The follow-up was chilling: Dhan shared something with me as the government view that I must now redact, but it did provoke me."

In another startling revelation, Justice Kaul said that before the tenure of CJI UU Lalit, the Collegium did not follow the practice of analysing the judgments and disposal rate of potential appointees to the Supreme Court.

"How could we assess a judge’s suitability for the Supreme Court without reading their prominent judgments? I felt that we judges did not appreciate how bizarre it would sound to a member of any other profession that this was not already the case...That elevations were made based on ‘soundings’ and purely informal impressions – just or unjust – that had been formed about a candidate did not sit right with me."

On the general functioning of the Collegium - something that is steeped in opacity - Justice Kaul reveals that it is only the CJI who proposes names, which other Collegium members agree or disagree on. A recommendation goes through only if there is a unanimous or a 4:1 agreement; 3:2 agreements do not go through. During his time as a Collegium members, he says, there was largely agreement on candidates.

He also reveals what a change in the Collegium composition implies.

"A candidate who had been favourably viewed by one collegium could be blocked by the next simply because of a personal antipathy or a difference of judicial philosophy in the new member. I had seen this happen repeatedly – a junior judge appointed ahead of a senior, or a senior overlooked entirely, only to be elevated the moment his opponent on the collegium departed. This was perhaps the system’s deepest flaw: the appearance of objectivity masking what were, in many cases, intensely personal decisions."

Justice Kaul further speaks of the increasing friction between the executive and the judiciary over judicial appointments. He said that things got worse after the passing of former Union Law Minister Arun Jaitley, a man he describes as a symbol of a more gentlemanly style of Indian politics.

"He was that rare breed: a politician whom judges could not but respect and a lawyer whom politicians could not afford to ignore. In all the time I knew him, including when he was at the apex of his power, he never once even attempted to speak to me about a matter that was before me or to influence me in any way. But if something on the administrative side was going wrong, it could be mentioned to him, and he had the ear of those at the top. He was never vindictive or small, and he believed, as I did, that merit and not ideology should decide appointments. His passing was a real loss, for no comparable face replaced him, and afterwards names began to stick on the smallest of pretexts, as I have recounted above."

Justice Kaul narrates a story where he and other Supreme Court judges were invited to a dinner at CJI Chandrachud's residence.

"...my family and I were invited, and so were Justices Hrishikesh Roy, Rajiv Shakdher and Deepak Gupta...After it, he (Chandrachud) gave his post-dinner speech, and in the speech, he said that we had here, himself included, some of the last of the liberal judges. That is to say, liberalism not in terms of any political commitment but an overall broad-minded approach. I listened to it, and after the dinner I said to him, ‘See, you mentioned this fact. Now, what did we do to get more liberal judges to the Supreme Court?’ I don’t think any of us could have had a very good answer to my question."