A Compromised Collegium Without Collegiality? Justice Kaul's Memoir Raises Concerns

Former Supreme Court Judge Justice Sanjay Kishan Kaul's memoir “Without Fear or Favour” has already created headlines even before it has formally hit the bookstands, with some of the startling statements regarding the inner workings of the judiciary finding their way to the press.

Justice Kaul's observations that former Chief Justice of India, Justice DY Chandrachud, was “too deferential to the Government on appointment matters”, and that he used to seek the “pre-approval” of the Government before the Collegium considered names for judicial appointments, have startled many. However, for those who have been keenly observing the Supreme Court for long, Justice Kaul's comments corroborated a perception which was wide there out in the open - that the Government holds a tight grip over judicial appointments, and the Collegium succumbs to it. This is indeed an irony. Because the Collegium system was created through an interpretative process, and retained after striking down the proposed National Judicial Appointments Commission, on the reasoning that judicial primacy in the matter of judges' appointments was non-negotiable. But the concept of judicial primacy in appointments remains just a concept, and as Justice Kaul's memoir shows, the Collegium has been weak or compromised in asserting it. The book articulates the position clearly : “This is the reality of the appointment process. It is fantasy to imagine that the collegium is isolated from political pressures. Governments assert themselves : If you give them an opening, they will grab it. The challenge is to maintain institutional integrity while navigating these pressures”

Justice Kaul also recounts an instance, during Justice UU Lalit's tenure as the CJI, where Justice DY Chandrachud deliberately held Court till 9 PM only with the intention of torpedoing a Collegium meeting - which was to be the last under CJI Lalit before his retirement. Justice Kaul does not mince words in expressing disapproval of Justice Chandrachud's treatment of the then CJI and the other colleagues who had waited for hours for him to join the meeting. "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."

There is another astounding instance, where the Government questioned the Collegium's proposal to appoint a judge from a religious minority. The Government's view was that one more representation from the minority faith was not needed when there were judges from other religious minorities (In a later interview to Karan Thapar, Justice Kaul clarified that the candidate was not a Muslim). Justice Kaul writes that he was “troubled by the Government's logic”.

He adds that CJI Chandrachud voiced another query from the Government - what was the caste of the candidate's ancestors before they converted. Justice Kaul describes this as “bizarre”. There was a more chilling follow-up query, which Justice Kaul refrains from disclosing in the book. Justice Kaul says he shut the file and walked out of the meeting, telling the Chief Justice, “If this is how we are going to appoint judges, you may as well consult and appoint yourself. Chief Justices used to appoint judges before the Collegium was created. You may do it that way. I cannot be party to such a decision.”

The book confirms that no collegium proposal emanated during the term of CJI SA Bobde since Justice Nariman stood firmly behind Justice Akil Kureshi - who deserved elevation both in terms of merit and seniority but was on the bad books of the Government due to some orders passed against the ruling party. It is suggested that CJI Bobde wanted to push for certain names preferred by the Government, so that the path can be clear, but Justice Nariman opposed the bypassing of Justice Kureshi.

It is also suggested that the sexual harassment scandal curtailed the judicial authority of CJI Ranjan Gogoi. “Appointments were made during his tenure, but in many ways his ability to exercise the full authority of the chief justiceship was hobbled,” he says.

Collegium acting on whims

Recently, Justice Rekha Sharma, former Delhi High Court judge, said at a CJAR seminar that the collegium was appointing judges on whims. There are instances from Justice Kaul's memoir which strengthen this view.

Recounting his days as the Chief Justice of the Madras High Court, Justice Kaul says that the name of a District Judge from Tamil Nadu, who carried an excellent recommendation, was forwarded to the Supreme Court Collegium for elevation to the High Court. It was turned down because one of the consultee judges at the Supreme Court disapproved. The underlying reason, Justice Kaul realised later, was somewhat petty - the consultee judge, during his visit to the particular Tamil Nadu district, felt that the recommendee had failed in arranging proper bondobast. “It was a grotesque outcome. A man's career had been curbed not because of any failing of his work or his integrity, but because a visiting judge felt he had not been given enough attention,” he writes. Later, when Kaul met a member of the then collegium, the latter admitted that a mistake was made in the case of the candidate.

It is also suggested in the book that the dropping of the recommendation to elevate Justice Pradeep Nandrajog from Delhi High Court may have been influenced by his personal disagreement with Justice Valmiki Mehta, to whom the then CJI, Justice Ranjan Gogoi, was related by marriage of their children. After retirement, Gogoi admitted to Kaul that a mistake was made in not elevating Nandrajog, saying, “he would have been an asset to the Supreme Court.”

In this context, one can see some point in Kaul's view that the NJAC ought to have been given a chance to work, with some tweaking to preserve judicial primacy. Rather than government pressures through backroom channels, and bargains based on personal preferences, a structured process combining judicial primacy with institutional transparency is preferable.

External influence in roster allotments?

Kaul touches on the circumstances which led to the deletion of the judicial appointments matter from his bench, on the day it was posted to await the Government's response on the long-pending proposal to transfer 4 Gujarat High Court Judges. By redacting certain details, Kaul says, “The Chief Justice was under some pressure.” Was the Government exerting the pressure to delete the matter from Kaul's bench? The guess is left to the readers.

It is also mentioned that the Government did not favourably view the listing of a matter seeking the reconsideration of the Vijay Madanlal Choudhary judgment, which upheld the key provisions of PMLA. The matter was shifted from Kaul's bench, and after he protested, it was restored. One day, the CJI called Justice Kaul to his chamber and asked if he really wanted to proceed with the matter, as there were rumours in the bar regarding it. Justice Kaul says he cannot succumb to rumours that he had taken money to hear the matter. The CJI then advised Kaul to take a “middle path”. 

The implication that there could be executive pressure over the 'Master of Roster' powers -which is the sole preserve of the CJI - is disturbing.

The misfortune of the citizens is that two major powers - Collegium and the Master of Roster - which can lead to decisions impacting their basic rights, are exercised in utmost secrecy and opaqueness, and it is only through a post-retirement memoir of a judge that one gets a glimpse of how whimsical, and at times seemingly designed to appease the government, some of the major decisions can be. But if those revelations do not spark a major public push for institutional reforms, they risk being reduced to mere gossip, offering little more than momentary gratification.