Behind the Collegium doors: Former SC judge Kaul's explosive claims trigger a showdown over ex-CJI Chandrachud's legacy

The debate over former Chief Justice of India DY Chandrachud's approach to judicial appointments has brought contrasting assessments from senior lawyers, with questions emerging over the Collegium's engagement with the government, allocation of sensitive cases and safeguards for judicial independence. The forthcoming memoir Without Fear or Favour has triggered a debate over the balance between the judiciary and the executive. Kaul's allegations revive debate over the Collegium system The controversy follows remarks by former Supreme Court judge Sanjay Kishan Kaul in an interview with The Wire's senior journalist Karan Thapar ahead of the publication of his memoir, Without Fear or Favour. As reported by PTI, Kaul questioned whether Chandrachud had exercised sufficient independence in administrative dealings with the government, particularly while recommending judges for appointment to the Supreme Court. Kaul, who retired in December 2023, served on the Collegium under Chandrachud from June 2022. He recalled a meeting convened to consider six vacancies in the Supreme Court, during which five candidates had already been agreed upon before Chandrachud introduced another name. According to Kaul, Chandrachud subsequently took him aside and considered contacting the government to ascertain its position on the proposed candidate. "The Chief Justice drew me aside into a separate room and wondered aloud whether he should telephone out to check the government's view," Kaul wrote in his book. He distinguished between legitimate consultation and seeking the executive's approval before the Collegium had formally considered a candidate. "There is a difference between consultation and what I came to regard as pre-approval, seeking the government's nod before the collegium had even formally deliberated," Kaul wrote. In his interview with The Wire, Kaul said he rejected the sixth name and believed the other Collegium members would also oppose it. He maintained that Chandrachud had wanted him to support the proposal, but the candidate did not secure agreement at the meeting. Kaul suggested that prior discussions with the government about judicial appointments had become an established practice, both before and after Chandrachud's tenure. He warned that a Chief Justice with a longer tenure could inadvertently establish conventions that successors with shorter tenures might find difficult to challenge. "We should have been more firm, and that's what my view was," Kaul said, referring to dealings with the government over appointments. Rakesh Dwivedi defends Chandrachud's tenure The allegations have drawn sharply contrasting responses from senior advocates. Rakesh Dwivedi, a constitutional law expert, defended Chandrachud's record, describing his tenure as a particularly distinguished period for the judiciary. "CJI Chandrachud's tenure as a judge and the Chief Justice of the Supreme Court of India was a glorious golden period for the Indian judiciary," Dwivedi told PTI. He credited Chandrachud-led benches with adjudicating disputes across several areas, including entry tax, Aadhaar privacy, mines and minerals, the Insolvency and Bankruptcy Code, arbitration, federal disputes concerning industrial alcohol, minority rights, Ayodhya and Article 370. Dwivedi also praised Chandrachud's administrative initiatives, citing digitisation, the introduction of artificial intelligence, a more organised system for mentioning matters and the Mitti Cafe initiative, which he said demonstrated consideration for persons with disabilities. Rejecting Kaul's allegation of excessive deference to the executive, Dwivedi pointed to decisions against the government's position, including the striking down of the electoral bonds scheme and a ruling against the Aadhaar law. "I do not think he was deferential to the government," Dwivedi said. He also questioned the propriety of a former colleague publicly criticising Chandrachud after retirement, arguing that a judge's performance could not be measured solely against the expectations of other members of the judiciary. Responding to Kaul's concerns about cases being transferred between benches, Dwivedi said such decisions could reflect the Chief Justice's responsibilities as master of the roster. He dismissed the dispute as minor friction and expressed concern that the criticism might have been timed to generate attention for the forthcoming memoir. Vikas Singh backs Kaul's criticism Senior advocate and former Supreme Court Bar Association president Vikas Singh endorsed Kaul's concerns, arguing that Chandrachud's public image of independence did not always match his conduct. Singh alleged that Chandrachud sent contradictory signals in his dealings with the government and questioned whether his administrative decisions consistently protected judicial autonomy. "There was a complete double face on the part of Justice Chandrachud... He was always double-speaking, talking this side and also talking that side," Singh told PTI. He further alleged that the former CJI's approach extended beyond judicial appointments to the allocation of politically sensitive matters between benches. According to Singh, cases should be assigned through a system in which the master of the roster determines the categories of matters each bench handles, while the allocation of cases within those categories takes place randomly. He argued that transferring proceedings after a bench had already issued notice could undermine this principle and create opportunities for selective allocation. Singh also discussed the National Judicial Appointments Commission (NJAC), which the Supreme Court struck down in 2015. While acknowledging the rejection of the commission, he argued that certain provisions could have been retained independently of the proposed government role in judicial appointments. These included creating a pool of eligible candidates and establishing a secretariat to identify potential appointees. Singh maintained that these provisions were separable from the question of executive participation and did not necessarily need to be invalidated along with the commission. PMLA case raises questions over bench allocation Another significant aspect of Kaul's account concerns a matter relating to the reconsideration of parts of a Prevention of Money Laundering Act (PMLA) judgment. Kaul objected to the transfer of the case from a bench headed by him to another bench, arguing that apprehensions about the likely outcome should not determine where a matter is heard. In his interview with The Wire, Kaul recounted a discussion involving Chandrachud and then-Justice Sanjiv Khanna, during which concerns were reportedly raised about his decision to take up the matter shortly before retirement. Kaul said the case had already been taken up earlier, and its subsequent scheduling followed a request from the government for additional time. He rejected the suggestion that proximity to his retirement should deter him from hearing it. He said he had told his colleagues that compromising his judicial convictions after 22 years as a judge would undermine his integrity. According to his account, he subsequently proceeded with the hearing alongside Khanna. Kaul also criticised the Supreme Court's administrative structure, describing it as heavily dependent on the registry and the Chief Justice, with limited consultation among judges. He contrasted this with what he described as better mechanisms for administrative discussion in several high courts. Singh agreed that the concerns about case allocation deserved scrutiny, although he questioned the timing of Kaul's revelations before the memoir's publication. "The timing of Justice Kaul's comments may not be appropriate, but I think whatever he has said was long overdue," Singh told PTI. He nevertheless maintained that the allegations needed to be discussed publicly. Congress flags concerns over judicial independence The controversy has also drawn a political response. According to PTI, Congress general secretary in charge of communications Jairam Ramesh cited Kaul's forthcoming memoir to raise concerns about judicial independence under the Narendra Modi government. In a Hindi post on X, Ramesh referred to allegations of government involvement in judicial appointments, attempts to obtain approval before Collegium meetings and questions allegedly raised by the government about the caste of a judge belonging to a minority community. He also interpreted Kaul's account of the PMLA proceedings as pointing to interference in the Supreme Court's functioning. Kaul, however, made a distinction between Chandrachud's judicial abilities and his administrative approach. In his interview with The Wire, he acknowledged the former CJI's intellectual depth, hard work and capacity to deliver judgments, while arguing that his dealings with the executive were more accommodating than necessary.