‘Courts aren’t a platform for Opposition to conduct political campaign’: Justice Sanjay Kishan Kaul

Interview/ Justice Sanjay Kishan Kaul, former Supreme Court judge

Since retiring from the Supreme Court in December 2023, Justice Sanjay Kishan Kaul has remained busy with arbitrations and other professional commitments. He recently revisited nearly four decades in the judiciary in his memoir, Without Fear or Favour, a 333-page account written over 18 months with lawyer Jay Vinayak Oza, senior resident fellow at the Vidhi Centre for Legal Policy in Delhi. His differences with former chief justice of India D.Y. Chandrachud have attracted attention, but Kaul insists that the larger questions concern institutional principles rather than personal relationships. At his Lutyens’ Delhi home, Shivoham, Kaul speaks to THE WEEK about judicial independence, the concentration of administrative power in the chief justice’s office and the need for greater discipline in the functioning of the courts. Excerpts from the interview:

Q/ Has the Supreme Court increasingly become the first destination for grievances rather than the last resort?

Depending on the nature of the dispute, the matter should be approached at the level where it ought to be considered first. The Supreme Court has powers under Article 32 and the power to correct errors under Article 136. It is a mixed picture, but many people want to come directly to the Supreme Court.

It is partly a question of discipline. The court must consider how many cases it should entertain directly. Otherwise, its ability to deliver timely justice is affected. The Supreme Court is not a court for deciding facts in the first instance. Where facts have to be established, there are systems designed for that. This tendency is particularly visible in political matters. I have always held that courts are not forums for settling political disputes. If the opposition has a grievance against an elected government, there are democratic methods to pursue it. Courts are a check and balance on government, not a platform for the opposition to conduct its political campaign.

Q/ The master of the roster gives the chief justice considerable power over which judges hear which cases. What safeguards are needed?

The master-of-the-roster principle has been judicially settled. I do not think the basic arrangement is likely to change. It depends on the chief justice. Once a roster is prepared, it should be followed. That is how it happens in the High Courts. The Supreme Court also made its roster public after controversy over this issue. As long as matters go to the judges designated under the roster, I think the arrangement is all right. There is a process through which certain matters are identified by the registry and placed before the chief justice for allocation. I feel this is not always necessary. It adds to the chief justice’s burden.

After my retirement, members of the Bar have told me that their grievance is that a matter should not normally go outside the published roster. Doing so creates apprehensions and suspicions. The only practical way forward is strict adherence. Ultimately, somebody has to be trusted, and the chief justice must exercise this power fairly.

Q/ Is the collegium still making merit-based appointments, or has the process become vulnerable to political considerations?

The collegium system emerged through judicial decisions in the early 1990s, when there was concern that judicial appointments were being affected by political considerations. Its purpose was to protect judicial independence. Every government, irrespective of which party is in power, seeks to have some influence over judicial appointments. The judiciary, in turn, has tried to push back. I do not believe that judges alone can appoint judges. The executive has always had a role and will continue to have one.

The National Judicial Appointments Commission could have provided an opportunity for people to sit across the table and discuss appointments. The six-member model raised concerns about a possible deadlock. Perhaps it could have been modified through a five-member commission or a casting vote for the chief justice. I did not sit on the bench that decided the matter, so I cannot say how those possibilities would have played out. The commission was never constituted, and the process returned to the collegium. The larger problem remains: the government believes it should have the final say, while the judicial position is that the existing procedure must be followed.

Q/ You insisted that important judgments written by candidates be circulated before their names were discussed in the collegium.

I firmly believed that a more objective selection process required us to examine the important judgments of the judge concerned. When subordinate judges are promoted, their judgments are examined. When lawyers are elevated to High Courts, their work and appearances in important matters form part of the assessment. The Supreme Court is the next stage, so why should the principle of examining a judge’s work not continue?

Circulating judgments gives everyone a better understanding of the judge’s reasoning and writing. Disposal figures can also help assess a judge’s ability to decide cases, keeping in mind that some matters are more complex and take longer than others. This must be balanced with an assessment of integrity and reputation. After I joined the collegium, the circulation of important judgments became an established practice. I believe it improves the selection process by making the assessment more objective.

Q/ You pressed the government over pending judicial appointments. Was contempt the right way to force action?

I did not consider it worthwhile to issue a contempt notice. Appointing a judge is a collaborative exercise, and it is not always clear whom one should hold responsible through contempt proceedings. The minister is not necessarily handling the file, and the secretary is not the ultimate decision-making authority. The warrant of appointment is ultimately issued by the president. I felt the matter required a push. We issued notice, rather than a contempt notice, and repeatedly requested the attorney general to assist us. Officials from the department of justice would explain how many names had been cleared and where the remaining recommendations stood.

The Supreme Court also had its own data: how many names were pending, how long they had been pending and at what stage. That process helped clear a fair number of names, although not all were cleared. The point was to ensure that appointments did not remain stalled indefinitely.

Q/ You and Justice D.Y. Chandrachud had been friends for decades. Where must friendship give way to institutional principle?

Justice Chandrachud has been a friend, and I have complimented him for his judicial acumen and hard work. But we differed over the appointment process. My view was that the collegium should meet, deliberate and decide. If the government offered an input, that could be considered before a final decision was taken. What I opposed was continuous pre-consultation with the government before the collegium had formally considered the names. About ten Supreme Court appointments were made while I was a member of the collegium during his tenure as chief justice. All those appointments were made with my consent. My concern was not that the appointments themselves had necessarily been wrong; it was about the process followed.

Some of the discussions around my book have been sensationalised. People have reacted to isolated points without appreciating the larger argument.

Q/ You credit Justice U.U. Lalit with reviving the Supreme Court’s Constitution benches, but have expressed reservations about his handling of judicial appointments.

I have not criticised Justice Lalit’s collegium decisions. I complimented him on taking the initiative to address a longstanding problem before he took over as chief justice for a relatively short period. He constituted six Constitution benches simultaneously, with five matters assigned to each, bringing 30 matters up for hearing. They took another few months to conclude, but at least they came up for hearing. I had five Constitution bench matters, for instance. We also tried to distribute the work so that everyone had a fair opportunity to write judgments.

My difference of view was that, given his short tenure, Justice Lalit was pushing us a little harder. On appointments, I felt he could perhaps have initiated the process earlier. When he eventually began, the process encountered obstacles, and some of those judges were appointed later.

There was also an episode involving Justice Chandrachud, who did not attend a collegium meeting, saying he had been sitting in court until nine in the evening. A feeling developed that perhaps he wanted to carry the vacancies into his own tenure. Justice Lalit subsequently attempted to move appointments forward through circulation, but the proposal did not progress as intended. Some candidates were appointed later.

Q/ The PMLA case was taken off your bench before being restored to a bench headed by you. What did that episode reveal about judicial independence?

At one stage, the PMLA case went out of my court. I protested, and a new bench was constituted. The government continued seeking time, and the matter eventually came close to my retirement before the hearing began. There was criticism in some circles about why I was attempting to hear it at that stage. I made it clear that I do not follow the middle path. I follow my own path.

The discussion was about whether I should hear the matter or not. The merits of the case were not discussed; no judge would decide a matter on that basis in a private conversation. It is important to understand the context of what I have written rather than reduce the episode to a sensational headline.