Justice SK Kaul Questions Government Role in Judicial Appointments

Former Supreme Court judge Sanjay Kishan Kaul has said governments have historically preferred judges whose principles and philosophy broadly align with their own, arguing that the judiciary must stand firm to preserve its independence. In an interview with India Today ahead of the release of his memoir, Without Fear or Favour, Kaul also criticised former Chief Justice of India DY Chandrachud’s approach to judicial appointments, saying the Supreme Court Collegium should deliberate independently before consulting the government.

Kaul’s remarks come amid continuing debate over the relationship between the judiciary and the executive, particularly the Collegium system, delays in judicial appointments and the extent to which the government should be involved in the selection process.

The former judge said that while judges remain largely independent when deciding cases, administrative matters, including appointments to the Supreme Court and high courts, present significant challenges. He argued that the Collegium should first discuss and decide on its recommendations internally rather than seek preliminary approval from the government.

Kaul’s forthcoming memoir also recounts his disagreement with Chandrachud over the inclusion of a sixth candidate in a list of names proposed for appointment to the Supreme Court. According to Kaul, the candidate was unacceptable to him and the other Collegium members, and he questioned whether Chandrachud had sought the government’s views before the Collegium had completed its deliberations.

Justice SK Kaul Says Governments Prefer Judges Who Share Their Views

In his interview with India Today, Kaul said the preference for judges who broadly share the governing establishment’s principles was not limited to a particular administration. He presented it as a recurring feature of the relationship between governments and the judiciary since the early decades after Independence.

“Starting from the history of the judiciary, any government in power, I’m saying from 1950s, would like judges who broadly agree with their principles and philosophy.”

Kaul said the responsibility for preserving judicial independence ultimately rests with judges themselves. He argued that members of the judiciary must be prepared to defend their institutional autonomy even when their decisions or administrative positions differ from the preferences of the government.

His comments distinguish between a government’s potential preference for ideologically compatible judges and the judiciary’s responsibility to make independent decisions. According to Kaul, the existence of such preferences makes it important for judges to stand by their principles and explain their decisions when disagreements arise.

He also suggested that maintaining judicial independence does not necessarily require a permanent confrontation with the executive. Drawing on his experiences in Chandigarh, Chennai and the Supreme Court, he said that a firm position accompanied by a clear explanation could allow the government and the judiciary to reach an understanding.

“If you stick by what you are saying, and in the process, you explain to the government the reasons for it, I said, by and large, I think the government is willing to play ball,” Kaul said.

His remarks reflect his view that the judiciary should defend its institutional responsibilities while continuing to engage with the government through established constitutional processes.

Kaul Criticises DY Chandrachud’s Approach to Judicial Appointments

A major focus of Kaul’s comments was his disagreement with former Chief Justice of India DY Chandrachud over the process of recommending candidates for appointment to the Supreme Court.

Excerpts from Kaul’s memoir, Without Fear or Favour, describe a disagreement over the inclusion of a sixth name in a list of candidates considered for elevation to the top court. Kaul said the candidate was unacceptable to him and the rest of the Collegium.

He alleged that Chandrachud might have sought the government’s approval or views on names before the Collegium had formally discussed them. Kaul criticised this approach, describing Chandrachud as too deferential to the government in the appointment process.

“I’ve said he’s deferential of the government in the appointment process,” Kaul told India Today, referring to Chandrachud.

Kaul clarified that his criticism concerned Chandrachud’s handling of judicial appointments rather than his work in deciding cases. The distinction is important because Kaul separately maintained that judges remain largely independent in judicial matters.

The disagreement described in the memoir centres on the order in which the Collegium and the government should engage during the selection process. Kaul argued that the Collegium should first deliberate on potential candidates, reach its own conclusions and then send its recommendations to the government.

His position is that preliminary consultation with the executive risks influencing the Collegium’s internal deliberations before its members have independently assessed the candidates.

Why Kaul Opposes Seeking Government Pre-Approval

Kaul argued that the Collegium should complete its deliberations independently before entering into discussions with the government about its recommendations.

“It was my belief that the collegium must debate the names and send it to the government, and that’s the stage where a discussion with the government should take place. We should not have some kind of a pre-approvals from the government.”

His position is that the judiciary should determine its recommendations through internal discussion rather than first establishing which names might be acceptable to the executive.

The issue goes to the heart of the debate over judicial appointments in India. The Collegium system gives senior judges a central role in recommending candidates for the Supreme Court and high courts, while the government is involved in processing those recommendations and completing appointments through the established procedure.

Kaul’s criticism concerns the point at which the government’s views should enter the process. He argued that the Collegium should first assess candidates on its own terms and provide its recommendations before discussions with the executive begin.

In his view, this sequence would help protect the independence of the selection process by ensuring that the Collegium’s deliberations are not shaped by informal expectations about the government’s preferences.

His remarks also highlight the importance of distinguishing between consultation after a recommendation has been formulated and seeking approval before the Collegium has reached a decision.

Justice Kaul Says Judicial Independence Remains Strong in Court Proceedings

Although Kaul criticised aspects of the administrative process, he did not suggest that judges had generally lost their independence when deciding cases. Instead, he drew a distinction between judicial decision-making and the administration of the judiciary.

“I believe judges still are largely independent, are capable of taking on the government in judicial matters. But on administrative matters, there are issues arising,” he said.

The distinction formed a central part of his assessment of the current challenges facing the judiciary. Kaul’s comments suggest that the ability of judges to decide disputes independently should be considered separately from concerns about appointments, case allocation and other administrative decisions.

Judicial independence involves the ability to decide cases according to the law and the evidence without improper external pressure. Administrative independence, meanwhile, concerns the institutional arrangements that shape how courts operate, including the selection of judges and the allocation of judicial work.

Kaul argued that problems in the administrative sphere require attention even if judges continue to exercise considerable independence in their judicial decisions.

He also emphasised the need for judges to stand by their positions when dealing with the government. In his account, explaining the reasons for a recommendation or institutional decision can help the judiciary defend its position without abandoning engagement with the executive.

Delays in Supreme Court and High Court Appointments Raise Concerns

Kaul identified delays in appointments to the Supreme Court and high courts as another concern affecting the judicial system.

Judicial appointments involve recommendations by the Collegium and subsequent processing by the government under the established procedure. Disagreements or delays at different stages can leave recommended candidates awaiting appointment and contribute to uncertainty about the composition of courts.

Kaul’s remarks linked these delays to the wider question of how the judiciary and the executive interact over appointments. He argued that the process becomes difficult when administrative decisions and recommendations are not handled in a timely manner.

His criticism also reinforces the importance of having a clear sequence for deliberations. If the Collegium is expected to exercise independent judgment, Kaul’s position is that its members should first assess the candidates and reach a collective view before engaging with the government.

The former judge did not frame the relationship as one in which every disagreement must lead to a confrontation. Instead, he said that the judiciary should maintain its position, explain its reasoning and allow discussions with the government to take place at the appropriate stage.

The issue of appointment delays remains connected to the broader debate over how to balance judicial independence with the executive’s role in completing the appointment process.

What Is the Supreme Court Collegium?

The Supreme Court Collegium is the body responsible for recommending appointments to the Supreme Court and high courts under India’s existing judicial appointment system.

During the period discussed by Kaul, the Supreme Court Collegium comprised the Chief Justice of India and the four senior-most judges of the Supreme Court. Kaul was a member of the Collegium from June 2022 until his retirement in December 2023.

The Collegium’s recommendations are central to the process of selecting judges for the higher judiciary. The government also has a role in the appointment procedure, making the relationship between the two institutions an important aspect of judicial administration.

The system has been the subject of sustained debate over transparency, accountability, delays and the respective roles of the judiciary and executive.

Kaul’s comments focus particularly on the independence of the Collegium’s deliberations. He argued that members should debate the merits of candidates and arrive at their recommendations without seeking preliminary government approval.

His position reflects a broader concern about preserving the judiciary’s ability to make appointment recommendations independently while maintaining a functioning relationship with the executive.

Kaul’s Memoir Reopens Debate Over Judicial Appointments

Kaul’s forthcoming memoir, Without Fear or Favour, has brought his disagreements with Chandrachud into public discussion. The account of the dispute over a proposed Supreme Court appointment offers insight into differences within the Collegium over how candidates should be considered and how the government should be involved.

Kaul’s criticism centres on what he describes as excessive deference to the executive during the appointment process. He said his disagreement with Chandrachud was specifically about appointments and should not be interpreted as a criticism of his judicial work.

The memoir’s account also highlights the role of individual members in Collegium deliberations. Although the body operates collectively, its recommendations depend on discussions among senior judges, including disagreements over the suitability of candidates.

According to Kaul, the Collegium should make its decisions through independent deliberation before communicating its recommendations to the government. He argued that seeking preliminary approval could undermine that independence.

The account adds to the ongoing discussion about whether the current appointment process provides the right balance between judicial autonomy, executive participation and timely appointments.

Can the Judiciary Maintain Independence Without Confronting the Government?

Kaul’s remarks suggest that judicial independence does not require the judiciary to avoid all engagement with the government. Rather, he argued that judges must be willing to defend their positions and explain their reasoning when disagreements arise.

His comments about experiences in Chandigarh, Chennai and the Supreme Court indicate that he believes a firm and reasoned approach can allow the government and judiciary to work through differences.

He said governments have historically preferred judges whose principles broadly align with their own, but he placed responsibility on judges to preserve their independence.

This approach distinguishes between the government expressing its views during the appointment process and the Collegium allowing those views to determine its deliberations before it has reached an independent conclusion.

Kaul’s argument is that the Collegium should first exercise its own judgment and then engage with the government through the established procedure. Such a sequence, in his view, would protect the independence of judicial appointments while leaving room for institutional dialogue.

What Justice SK Kaul’s Remarks Mean for the Judicial Appointment Debate

Kaul’s comments have brought renewed attention to three connected issues: the independence of the Collegium, delays in judicial appointments and the relationship between the judiciary and the executive.

His criticism of Chandrachud centres on the appointment process and the alleged practice of seeking the government’s views before the Collegium has completed its deliberations. He has maintained that the body should discuss candidates independently before submitting recommendations.

At the same time, Kaul said judges remain largely independent in judicial matters. His concern is that administrative processes, particularly appointments, face difficulties that require a stronger commitment to institutional independence.

The debate also raises questions about how the appointment system can operate efficiently while preserving the judiciary’s ability to recommend candidates without improper influence. Delays in clearing recommendations and disagreements over the process continue to make the relationship between the executive and judiciary a significant institutional issue.

Kaul’s central message is that governments may prefer judges who share their outlook, but the responsibility for protecting judicial independence rests with the judiciary itself. He argued that judges must stand by their decisions, explain their reasoning and ensure that the Collegium’s deliberations remain independent of preliminary government approval.