Meet Justice Kaul, an author now, trying to sell his book with some "masala" on DY Chandrachud

When previously prominent or powerful personalities write a book, publishers are more than willing to print their reminiscences, but with one proviso: give us something that will raise a controversy so that the book can sell.

This is probably the case with retired Justice Sanjay Kishan Kaul, whose book, Without Fear of Favour, is set to hit the stands soon. He has already been interviewed over its contents.

As Kaul tells it, former Chief Justice of India DY Chandrachud, in whose collegium of senior judges he had served, was deferential to the government. CJI Chandrachud (sometimes) consulted the government before making judicial recommendations, says a Times of India report quoting from a Wire interview. “This has unfortunately become a practice of names being discussed, and some kind of previous discussion with the government. That used to happen. It has been happening. I think before CJI Chandrachud, and after. That is why it troubles me.”

There are a few problems with this claim.

First, as CJI Chandrachud himself pointed out when asked for his reaction, he is quoted as saying: “There was never even a dissent by any member of the collegium over any name during discussions for appointments to the Supreme Court.” If Justice Kaul didn’t demur when it mattered, why try to make a controversy of it now?

Second, if consultations with the government have been happening before DY Chandrachud became CJI and even after, Justice Kaul should know that his own elevation could have come through this same route. So why object to it now, when he has been a direct beneficiary of the collegium system?

Third, the constitutional scheme does not seek to exclude the government from making its own suggestions on higher judicial appointments, but this is what became the law after the emergency. The judiciary, which was wounded by Indira Gandhi’s efforts to supersede judges and create a “committed” judiciary, decided in three cases (called the first, second and third judges cases) to create a collegium to pick judges. That this system did not necessarily create a judiciary completely independent of the executive was obvious, for the government could influence the judiciary in its own way – by offering them sinecures after retirement and other less stated methods. An Indian Express report of 2012 noted that 18 out of 21 Supreme Court judges who retired after 2008 were given post-retirement jobs by the government. One judge was so eager to take up his next job that he even resigned before he was due to retire from the Supreme Court.

Article 124 of the constitution, which tells us how higher court judges should be picked, has this to say:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose and shall hold office until he attains the age of sixty-five years.”  

The meaning of the above clause (2) in article 124 is obvious: it is the government that appoints judges, but after effective consultations with senior judges as it feels necessary. The President here means the executive, for the President acts only on the advice of the cabinet of ministers.

The collegium system inverted the system by making judicial choices on its own – a unique case in the world where judges select judges – and then expecting the government to appoint them without question. What has happened in recent years is that the judiciary, and the CJI, have found it sensible to consult with the government before making its own final recommendations – which is in keeping with the spirit of article 124.

So, what exactly is Justice Kaul objecting to? Once again, it appears as though selling a book needs some “masala” to be invented post-facto. It may be useful to jog your conscience to see if one can do more virtue signalling about judicial independence after retirement.

Sorry, Justice Kaul. This is not quite believable. But best of luck with your book.