The collegium may be the Supreme Court’s answer to keeping political influence out of judicial appointments, but it has never been insulated from the pressures of the political establishment, former Supreme Court judge Sanjay Kishan Kaul writes in his forthcoming memoir, arguing that the government’s lingering resentment over the scrapping of the National Judicial Appointments Commission (NJAC) in 2015 has shaped its dealings with the judiciary ever since.
Justice Kaul underlines that the problem is not consultation between the judiciary and the executive, which he considers inevitable, but the point at which consultation becomes an attempt to secure the government’s approval before judges have even deliberated on a candidate. The commission, created through a constitutional amendment and a companion law passed with overwhelming parliamentary support, would have included the Union law minister and two eminent persons alongside three senior judges. Any two members could have blocked a proposed appointment. To be sure, the collegium system resulted from Supreme Court rulings in the 1990s, giving the judiciary primacy in making recommendations for appointments to the constitutional courts. One of his most revealing accounts concerns a candidate from a minority faith whose elevation was questioned by the government. A further query concerned the caste to which the candidate’s family had belonged before converting to the faith. Justice Chandrachud added there was not a single instance of Justice Kaul recording a dissent when the collegium formally proposed candidates to the government for appointment as judges. Justice Chandrachud also emphasised that collegium decisions were not arrived at abruptly in meetings.
Justice Kaul traces this dynamic to the political establishment’s inability to reconcile itself to the Supreme Court’s decision striking down the NJAC in October 2015. A five-judge Constitution bench struck down the arrangement by a 4:1 majority, restoring the collegium system.
“It is fantasy to imagine that the collegium is isolated from political pressures,” Justice Kaul writes in Without Fear or Favour, to be published by Juggernaut Books later this month, offering an account of the appointment process that is as much an indictment of its informal workings as it is a critique of former Chief Justice of India (CJI) Dhananjaya Y Chandrachud’s approach to the government. “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…Any political class will always assert itself if you give them a wedge in the door,” he writes. The government first raised the question of whether the Supreme Court needed additional representation from that faith, despite the candidate being from a state under-represented on the court, according to Justice Kaul. He said this was an important part of the record to consider while assessing the decision-making process. “Judges held multiple rounds of informal and formal discussions before names were officially considered and recommendations sent to the government”, he said, adding that Justice Kaul had never walked out of any such meeting. The meetings were conducted in a congenial atmosphere, according to Chandrachud.
