"Trop déférent envers le gouvernement": l'ex-juges interroge Chandrachud sur les nominations au SC

Former Supreme Court Judge Sanjay Kishan Kaul has accused former Chief Justice of India D Y Chandrachud of being excessively deferential to the central government regarding judicial appointments. In his upcoming memoir, titled Without Fear Or Favour, Kaul alleges that Chandrachud sought prior approval from the executive branch before the Collegium, the body responsible for recommending judges, had formally deliberated on candidates. Kaul stated that this practice compromised the independence of the judiciary and created a precedent that could burden future Chief Justices with shorter tenures. The allegations center on specific incidents during Kaul’s tenure on the Collegium, which began in June 2022. According to Kaul, the panel faced a task to fill six vacancies in the Supreme Court. Five names had been agreed upon in advance among the members. However, just before the official meeting, Chandrachud proposed a sixth candidate. Kaul wrote that he objected to the late addition, stating the name was unacceptable to him and likely to face opposition from other Collegium members. During the meeting, Chandrachud reportedly stepped aside with Kaul and asked aloud whether he should telephone the government to ascertain its views on the proposed appointments. Kaul described this moment as confirming his suspicion that the extra name had been proposed at the government’s instance. He advised Chandrachud against making such calls during a Collegium session, arguing it was procedurally improper. Ultimately, the five pre-agreed names were approved, while the sixth candidate was rejected. Kaul also detailed a dispute involving a candidate from a minority faith. He claimed the government raised queries about the necessity of further representation from that community, citing existing judges from other religious minorities. The administration subsequently inquired about the caste of the candidate’s family. Kaul described this inquiry as bizarre and troubling. He told Chandrachud that if the process continued in this manner, the Chief Justice might as well appoint judges unilaterally, a practice common before the Collegium system was established. Kaul stated he refused to participate in decisions influenced by such political pressures. He noted that tensions between himself and Chandrachud peaked over these issues, leading to a strain in their professional relationship. In interviews conducted for his book launch, including one with journalist Karan Thapar, Kaul elaborated on his concerns. He argued that while consultation with the government is permissible, it must occur after the Collegium reaches a decision, not before. Kaul stated that pre-approval undermines the institution’s integrity. He observed that governments tend to assert influence when given an opening and that they generally respect judges who demonstrate firmness in such matters. Kaul warned that if a Chief Justice with a long tenure establishes a pattern of prior consultation, successors with shorter terms may find it difficult to break the practice, potentially allowing the government to dictate methodologies for Supreme Court appointments. Justice Chandrachud responded to the allegations by asserting that there was never a dissent recorded by any Collegium member regarding names discussed during his tenure. He stated that all resolutions were unanimous and signed by all members without objection. Regarding Kaul’s specific claim about seeking government views, Chandrachud told a newspaper that he could not comment until he had read the full text of the memoir. However, he emphasized that his interactions with Kaul were respectful and characterized by reasoned dialogue. He described their meetings as affable and denied that the relationship was contentious. Kaul also addressed a separate legal matter where he claimed his authority was undermined. He stated that a bench comprising himself and Justice Sudhanshu Dhulia had questioned the government’s delay in implementing Collegium resolutions. On November 20, 2023, the bench asked why the Centre had not transferred four judges from the Gujarat High Court or appointed two Sikh lawyers to the Punjab and Haryana High Court, as recommended. Kaul alleged that this case was subsequently removed from his bench under pressure from the government. He noted that the case has not been listed in court for three years, describing the abrupt withdrawal as deeply troubling. The former judge, who retired in December 2023, previously engaged in a public exchange with media reports suggesting he had insisted on certain candidates despite resistance from peers. Kaul rejected those characterizations, stating that all recommendations were made by consensus and that claims of personal insistence were imaginative fabrications. He maintained that his role was to push for appropriate candidates within the framework of collective agreement. Political parties have reacted to the disclosures. Congress leaders have flagged the allegations as raising serious concerns about judicial independence. They argue that the practice of pre-clearing names with the executive erodes the separation of powers. The controversy highlights ongoing debates about the balance of power between the judiciary and the executive in the appointment process. Kaul’s memoir is scheduled for publication later this month by the publisher Juggernaut. The book offers a firsthand account of the internal dynamics of the Collegium during a period marked by significant constitutional scrutiny. Kaul’s assertions contrast sharply with the standard narrative of Collegium proceedings, which typically emphasize confidentiality and unanimity. By detailing specific instances of perceived external interference, he challenges the notion that the appointment process operates in isolation from political realities. He acknowledged in the book that it is a fantasy to imagine the Collegium is free from political pressures, noting that governments actively seek to influence outcomes. His argument centers on maintaining institutional integrity by resisting such pressures rather than accommodating them through prior consultation. The incident involving the sixth candidate serves as a focal point for Kaul’s critique. He viewed Chandrachud’s willingness to seek government input mid-meeting as a breach of protocol. Kaul believed that the other members of the Collegium would reject the name, and indeed, they did. This outcome reinforced his belief that prior alignment with the government was unnecessary and detrimental. He stated that he attempted to discourage Chandrachud from adopting this habit, fearing it would set a dangerous precedent for future leadership. Chandrachud’s defense rests on the procedural record, highlighting the lack of formal dissents. He portrays the Collegium’s work as collaborative and respectful, denying that his approach was subservient to the government. The discrepancy between Kaul’s account of informal pre-consultations and Chandrachud’s emphasis on formal unanimity underscores the complexity of intra-institutional disputes. Both men acknowledge the difficulty of navigating relationships with the executive while preserving judicial autonomy. As the memoir enters the public domain, attention turns to the broader implications for judicial governance. The specific dates and actions cited, such as the November 2023 bench order and the subsequent removal of cases, provide concrete evidence for Kaul’s claims of administrative intervention. The absence of the relevant case from court listings for three years stands as a tangible consequence of the alleged pressure. These facts form the basis of Kaul’s argument that the current methodology requires reform to protect the independence of the highest court in the country.