RETIRED judges rarely speak openly about what they witnessed in office. When they do, it is usually years later. Justice Sanjay Kishan Kaul, who retired from the Supreme Court in December 2023, has broken that silence. In his memoir Without Fear or Favour, written with Jay Vinayak Ojha, and in an interview with Karan Thapar for The Wire, he describes the government's interference in judicial appointments and criticises former Chief Justice D.Y. Chandrachud for being, in his assessment, "too deferential" to the executive.

One of his most significant revelations concerns the practice of "pre-approval": informally approaching the government for its consent to a proposed judicial appointment before the collegium formally considers it. Justice Kaul's memoir shows how executive pressure reaches the Supreme Court: not through a front door that can be challenged, but through back corridors where no one is watching. He acknowledges that the practice predates Chandrachud's tenure but argues that it became normalised under him.

‘PRE-APPROVAL’ FOR JUDGES’ APPOINTMENTS

He recounts how, towards the end of 2022, the collegium unanimously agreed on five names for appointment to the Supreme Court. A sixth candidate had the support of the Chief Justice alone, and Kaul suspected that the name had originated with the government. The five recommendations were sent to the Centre on December 13, 2022, but notifications came only 53 days later, after Justices Kaul and Oka warned the Attorney General against further delay.

In another instance, the government questioned the need for greater representation of a minority community in the judiciary. A further query concerning the caste of a candidate's family struck Kaul as "bizarre". Whatever one thinks of the collegium's imperfections, an executive that interrogates a candidate's religion and caste before agreeing to appoint him has abandoned any pretence of neutrality.

Such questions expose the extent to which the executive was attempting to influence appointments on considerations that should have no place in a constitutionally independent judiciary.

Two other episodes are particularly disturbing. A 2021 petition by the Advocates Association Bengaluru sought contempt action against the Union government for delaying collegium recommendations. On November 20, 2023, a Bench of Justice Kaul and Sudhanshu Dhulia gave the government until December 5 to explain its inaction. The matter was removed from that Bench overnight and has not been heard since.

In another instance, a Bench headed by Justice Kaul was reconsidering the PMLA judgment in Vijay Madanlal Choudhary, which upheld the Enforcement Directorate's sweeping powers. He says he was advised to find a "middle path", which he refused to do. The case was subsequently withdrawn from his Bench, weeks before he retired.

These incidents reveal how executive influence can operate without an explicit order or formal rejection.

POCKET VETO

The Second Judges case of 1993 established that although the government could raise objections to a collegium recommendation, it was constitutionally bound to accept a name if the collegium reiterated it. This arrangement was intended to prevent the executive from controlling the composition of the judiciary.

The pocket veto circumvents that safeguard. Instead of rejecting a recommendation, which would invite reconsideration by the collegium, the government simply sits on the file. Candidates wait indefinitely; some eventually withdraw their consent. The Supreme Court Observer reported that, as of November 2024, 27 names recommended by the Chandrachud collegium for High Court appointments remained uncleared. While most were subsequently notified, some candidates received no communication, and two advocates withdrew their consent after waiting a year.

The numbers also show how the system adapts. Under Chief Justice Gavai, the Union cleared 96 per cent of recommended names. Under Chief Justice Khanna, 24 per cent were left uncleared. An equally troubling development is the willingness of collegiums to anticipate government objections. A collegium that recommends only names likely to receive executive approval no longer needs the government to exercise its pocket veto. It has internalised it. This is the significance of Kaul's criticism of pre-approval and his assertion that government involvement in appointments has become "inevitable".

There was a time when the collegium demonstrated greater institutional independence. In January 2023, it reiterated five recommendations, including that of Saurabh Kirpal, and published its reasons for rejecting the Union government's objections. That assertion of judicial independence has not been repeated with comparable determination.

MASTER OF ROSTER POWERS

The second major issue raised by Justice Kaul concerns the Chief Justice's control over the judicial roster. Both instances in which his cases were withdrawn from his Bench expose the enormous discretionary power vested in the Chief Justice. The issue is not new. In January 2018, four senior Supreme Court judges held a press conference and publicly questioned the arbitrary exercise of this power. Yet, subsequently, a judgment authored by Justice Chandrachud affirmed that the Chief Justice alone has the authority to constitute Benches.

The consequence is a concentration of power that allows one individual to determine whether important challenges to executive action will be heard by particular Benches. When cases concern the government's obstruction of judicial appointments or the sweeping powers of investigative agencies, such discretion becomes a serious constitutional concern. It does not require an overtly partisan Chief Justice. Institutional deference and a preference for a "middle path" may be sufficient.

The Court that decided ADM Jabalpur is the same Court that later spoke the language of rights. But a Constitution that promises justice, social, economic and political, depends on courts that can say no to the state. The worker, the Dalit, the Muslim, the dissenting student and the journalist have one thing in common: when the executive turns on them, they have nowhere to go but a court.

Jawaharlal Nehru, speaking in the Constituent Assembly in 1949, emphasised the need for Supreme Court judges who could "stand up against the executive government". Mahatma Gandhi, nearly three decades earlier, had warned against courts lending their authority to an unjust government and becoming instruments for suppressing people's spirit.

The present regime has shown little willingness to accept judicial independence. Its response to the Supreme Court's striking down of the National Judicial Appointments Commission (NJAC) in 2015 has been one of attrition rather than acceptance. Justice Kaul himself acknowledges that the government has not come to terms with that judgment. A regime increasingly characterised by majoritarian centralisation and the weakening of constitutional institutions has an obvious interest in a judiciary that is dependent, anxious and reluctant to confront executive power. The pocket veto is therefore not merely an administrative tactic; it is part of a larger assault on constitutional checks and balances.

JUSTICE KAUL’S POSITIONS

Justice Kaul's own positions, however, are not beyond criticism. He has argued for a "tweaked" NJAC with a role for the government which, to defenders of the 2015 judgment, sounds like conceding the executive's claim through another door. His tenure in the collegium also raises questions about the transparency of certain appointments, including the 2023 recommendation of Justice Satish Chandra Sharma as Chief Justice of the Delhi High Court, where the resolution offered only generic reasons. His silence while in office, followed by revelations after retirement, also invites scrutiny. Critics have questioned whether publishing confidential collegium deliberations so soon after retirement is appropriate.

These reservations do not diminish the importance of the issues he has brought into the public domain. Rather, they reinforce the need for greater transparency and accountability. If the public must depend on a retired judge's memoir to understand how judicial appointments are handled, the existing system is clearly inadequate. Confidentiality may protect judicial deliberations from executive pressure, but it should not become a shield against public scrutiny.

The answer is not to return appointments to executive control through a revived NJAC or a supposedly more cooperative arrangement. Instead, the existing system must be made transparent and accountable. Collegium resolutions should provide substantive reasons for recommendations, record government objections and explain the response. Strict timelines must govern appointments, with contempt jurisdiction invoked where necessary to prevent deliberate obstruction. Once a roster is made by the “master of the roster”, it should remain in vogue for at least six months and should not be altered “mis-session”. The Chief Justice's power over the roster must be regulated by transparent, published principles rather than individual discretion. Above all, the Court must hear the long-pending challenge to executive delays in appointments.

The title of Justice Kaul's book echoes the oath every judge swears. Fear and favour are rarely applied by a minister's order. They are applied through a delayed notification, a case that quietly leaves a Bench, a name dropped before it is ever recommended. Each is deniable. Together they make a court that learns to look toward power. The Constitution asks a different thing of its judges, and of those of us who appear before them. We should ask for it, and keep asking.