A former Supreme Court judge has raised questions about whether the government’s views on judicial appointments were being sought even before the Supreme Court Collegium formally discussed candidates. Justice Sanjay Kishan Kaul has alleged that former Chief Justice of India DY Chandrachud considered consulting the government on proposed names while the Collegium was still deliberating.

In an interview with journalist Karan Thapar for The Wire, Kaul described what he considered an inappropriate practice of seeking the government’s “pre-approval” for judicial appointments. He recounted an incident involving a disagreement over a proposed list of Supreme Court judges, an episode also discussed in his forthcoming memoir, Without Fear or Favour.

According to Kaul, the Collegium had reached an agreement on five names for judicial appointments when Chandrachud proposed a sixth candidate. Kaul said he and other Collegium members did not agree with the additional name.

Kaul recalled that Chandrachud took him aside during a Collegium meeting and asked whether he should contact the government to find out its position on the proposed appointments. Kaul said he opposed the move, arguing that such discussions should not take place before the Collegium had formally deliberated on the names.

He also suggested that the government’s views might already have been sought on some of the candidates, although his account does not establish that this had happened in advance.

Why Kaul objected to government ‘pre-approval’

Kaul drew a distinction between consulting the government after the Collegium has made its decision and seeking its approval before the judges have formally considered the candidates.

He argued that approaching the government beforehand could create a precedent that future Chief Justices might find difficult to resist. In his view, repeated informal consultations before Collegium meetings could give the government greater influence over the appointment process.

Kaul said he was not opposed to discussions between the judiciary and the government. His objection was to the timing and manner of those discussions.

He also criticised Chandrachud’s approach to administrative matters involving the government, describing the former CJI as too deferential in judicial appointment decisions.

Chandrachud offers a different account

Responding to questions from The Indian Express about Kaul’s account, Chandrachud said he had not read the memoir and would need to examine it before commenting in detail. He described his relationship with Kaul during their time on the Collegium as respectful and said he did not recall an occasion when Kaul walked out of a meeting.

Chandrachud also noted that the government has a role in the judicial appointment process, pointing out that the President formally issues judges’ warrants of appointment.

The differing accounts bring renewed attention to the relationship between the judiciary and the executive, particularly the boundaries of government involvement in selecting judges for the higher judiciary.