“More Deferential Than Necessary”: Inside Justice Sanjay Kishan Kaul’s Criticism of Former CJI D.Y. Chandrachud
New Delhi : A fresh debate over judicial independence and the relationship between India’s judiciary and the executive has emerged following strong criticism by former Supreme Court judge Justice Sanjay Kishan Kaul of former Chief Justice of India D.Y. Chandrachud. Click Here To Follow Our WhatsApp Channel
In his memoir, Without Fear or Favour, Justice Kaul questions Chandrachud’s approach to dealing with the Union government, particularly in matters concerning the appointment of judges to the Supreme Court and High Courts. Kaul argues that the former CJI was, in his view, “more deferential than necessary” to the government, warning that excessive consultation before formal judicial deliberations could weaken the independence of the Collegium system.
The criticism has attracted attention because it comes from a former Supreme Court judge who served alongside Chandrachud on the Collegium, the body responsible for recommending appointments to India’s higher judiciary. Kaul’s account offers an insider’s perspective on disagreements that, according to him, affected their working relationship and raised broader questions about institutional independence.
Chandrachud, however, has said he cannot provide a detailed response to the allegations without first reading the memoir. He has also defended the nature of Collegium discussions during his tenure, describing them as respectful and marked by reasoned dialogue.
Disagreement Over Judicial Appointments
At the centre of Justice Kaul’s criticism is a disagreement over how the Supreme Court Collegium should engage with the government before recommending candidates for judicial appointments.
According to Kaul’s account, a Collegium meeting was scheduled to consider appointments to fill six vacancies in the Supreme Court. Five names had reportedly been discussed and agreed upon beforehand. However, Kaul says Chandrachud proposed a sixth name shortly before the meeting.
Kaul was opposed to the proposed candidate and believed the other members would not support the recommendation. He says Chandrachud subsequently wondered whether he should contact the government to ascertain its position on the candidate.
For Kaul, the episode raised a fundamental concern about the difference between consultation and seeking approval in advance.
He argues that the Collegium must retain the authority to deliberate independently on candidates before any recommendation is made. Although dialogue with the executive is an established feature of the appointment process, he believes the timing and manner of such discussions are crucial.
In his view, seeking the government’s position before the Collegium has formally considered a name risks creating an expectation that judicial appointments should be cleared informally by the executive before judges make their collective decision.
Kaul maintains that this approach could gradually alter the balance of power between the judiciary and the government. Once such a practice becomes routine, future Chief Justices may find it difficult to depart from it, particularly if they have shorter tenures or less institutional authority.
The former judge’s concern, therefore, extends beyond one disputed candidate. He argues that the procedures adopted by a Chief Justice can establish precedents that influence how judicial appointments are handled long after that Chief Justice has retired.
The Difference Between Consultation and Pre-Approval
Justice Kaul’s argument rests on a distinction between two forms of engagement with the executive.
Consultation allows the government to communicate its views, raise concerns and participate in the established appointment process. Pre-approval, as Kaul describes it, involves seeking the government’s position before the Collegium has formally deliberated on a candidate.
He does not suggest that communication between the judiciary and the government should end altogether. Instead, he argues that such engagement must not compromise the Collegium’s independent decision-making authority.
The concern is particularly significant because the government plays a role in processing judicial appointments, while the Collegium is expected to recommend candidates independently. If informal government preferences begin influencing deliberations before judges have assessed candidates collectively, the distinction between consultation and executive influence could become blurred.
Kaul believes that the judiciary must be conscious of how institutional practices develop. A process that appears convenient during one Chief Justice’s tenure could become an unwritten convention that constrains future officeholders.
His criticism is therefore framed as a question of institutional safeguards rather than simply a personal disagreement with Chandrachud.
A Dispute Over Representation and a Candidate’s Background
Kaul’s memoir also recounts a separate disagreement concerning a candidate belonging to a minority faith.
According to his account, questions were raised about the representation of religious minorities in the higher judiciary. He says a further question concerned the caste background of the candidate’s family before conversion.
Kaul considered the line of questioning inappropriate and questioned its relevance to the assessment of a judicial candidate.
He argues that appointments should be guided by relevant professional and constitutional considerations rather than questions that could introduce irrelevant social or religious distinctions into the selection process.
The episode reportedly intensified the disagreement between the two judges. Kaul recounts expressing strong opposition to the approach and warning that if the government’s views were allowed to determine the selection process, the purpose of a Collegium would be undermined.
He says he eventually closed the file and left the room. According to his account, the meeting was adjourned, and the matter was not taken up again for some time. He further claims that the government subsequently relented and the candidate was approved.
These details are Kaul’s account of private discussions. Their full context, including the precise wording of the questions and the sequence of events, would need to be assessed against the memoir and any available official records.
Nevertheless, the episode illustrates his wider concern that informal executive preferences could influence decisions that should be made through an independent and reasoned judicial process.
Why Justice Kaul Believes a Firmer Approach Was Necessary
Justice Kaul says he had high expectations of Chandrachud when the latter became Chief Justice of India. According to Kaul, he had offered to support Chandrachud at the beginning of his tenure, believing that the second-most senior judge should assist the Chief Justice rather than obstruct him.
However, Kaul says their approaches to dealing with the government differed.
He believes the judiciary must be prepared to take a firm position when executive actions or delays threaten the proper functioning of the courts. In his view, a Chief Justice with sufficient authority and a relatively long tenure has a responsibility to protect the independence of the institution and avoid establishing practices that could weaken the position of successors.
Kaul argues that governments inevitably seek influence over appointments and other administrative matters. The judiciary, he believes, must recognise this reality and ensure that consultation does not become a mechanism through which executive preferences gain undue weight.
His assessment is not an assertion that every disagreement with the government should result in confrontation. Rather, he argues that judges should maintain clear institutional boundaries while remaining open to legitimate communication.
Kaul also acknowledges Chandrachud’s intellectual ability and professional capacity. His criticism focuses primarily on what he regards as excessive deference in administrative dealings with the government, rather than a general rejection of Chandrachud’s judicial abilities.
The Prevention of Money Laundering Act Case
Another source of tension described by Justice Kaul concerns proceedings related to the Prevention of Money Laundering Act (PMLA).
The Supreme Court had upheld key provisions of the law in its 2022 judgment. Subsequently, petitions seeking reconsideration of aspects of that judgment came before the Court.
Kaul recounts that a three-judge bench headed by him was dealing with the question of whether aspects of the earlier ruling merited reconsideration. He says the matter’s movement between benches and discussions about how it should be handled raised concerns for him.
According to Kaul, he was advised during discussions with Chandrachud to exercise caution and consider a middle path. Kaul interpreted the advice as part of a broader difference over how the Court should handle sensitive matters involving the government.
He also objected to what he understood as the transfer or consolidation of the proceedings before another bench without adequate consultation with him.
For Kaul, the principle at stake was that cases should not move from one bench to another because of apprehensions about how a particular bench might decide them.
The allocation of cases is an administrative responsibility of the Chief Justice, who is commonly described as the master of the roster. However, Kaul’s account raises questions about the importance of transparency, consultation and institutional confidence in the exercise of that authority.
The dispute should not be interpreted as proof that the government directed the handling of the PMLA proceedings. Kaul’s account describes his concerns and recollections; establishing any improper external influence would require independent evidence.
The episode nevertheless forms part of his broader argument that the judiciary must preserve confidence in its procedures, particularly when dealing with cases that attract significant political and public attention.
The Collegium System and the NJAC Controversy
Justice Kaul’s criticism also connects with the longstanding debate over judicial appointments in India.
The current Collegium system developed through Supreme Court judgments that placed the judiciary at the centre of recommendations for appointments to the higher courts. The system is intended to protect judicial independence by limiting the possibility of direct executive control over who becomes a judge.
However, the system has faced criticism over transparency, accountability and the concentration of decision-making power among a small group of senior judges.
In 2015, the Supreme Court struck down the National Judicial Appointments Commission (NJAC), a constitutional mechanism designed to replace the Collegium system and give a broader group, including executive representatives, a role in judicial appointments.
Kaul expresses reservations about the way the NJAC was rejected. He argues that the alternative mechanism could have been given an opportunity to operate and potentially refined rather than dismissed outright.
His position adds an important dimension to the debate. While he strongly defends the need for judicial independence from executive pressure, he also acknowledges that the Collegium itself is imperfect.
The central question is not merely whether judges or the government should control appointments. It is how India can establish a system that combines judicial independence, transparency, accountability and safeguards against undue influence.
Kaul’s account suggests that informal arrangements cannot adequately resolve these concerns. In his view, the process requires clear institutional boundaries and a willingness to defend them.
Chandrachud’s Response to the Criticism
Former Chief Justice D.Y. Chandrachud has responded cautiously to the claims attributed to Kaul.
He said he had not read the memoir and therefore could not offer a detailed response without understanding the context in which the allegations had been made.
Chandrachud also described his Collegium meetings as respectful, characterised by reasoned discussions and constructive exchanges. He said he did not recall an occasion on which Kaul had walked out of a Collegium meeting.
He further noted that resolutions were passed after Collegium meetings and that he did not recall recorded dissent in those resolutions.
Chandrachud also pointed out that the government has a role in the judicial appointment process, including the formal appointment of judges through the constitutional procedure involving the President.
His response underscores a distinction between disagreement over the appropriate method of consultation and an allegation of wrongdoing. Communication between the Chief Justice and the government is not inherently improper; the central issue raised by Kaul concerns the stage at which that communication occurs and whether it risks undermining independent deliberation.
Until Chandrachud has had an opportunity to examine the memoir and respond to its specific claims, the competing accounts should be presented with appropriate caution.
Judicial Independence and the Separation of Powers
The controversy highlights a fundamental principle of constitutional democracy: the judiciary must remain independent while operating within a system in which the executive and legislature also have legitimate constitutional responsibilities.
The government is responsible for administering the country and has an interest in ensuring that judicial vacancies are filled. The judiciary, meanwhile, must retain the freedom to assess candidates and decide cases without improper pressure.
Neither consultation nor disagreement between institutions is inherently a problem. Indeed, communication can help resolve delays, clarify concerns and improve administrative efficiency.
The difficulty arises when informal arrangements begin to replace established procedures or create the perception that decisions are being shaped by preferences outside the institution responsible for making them.
Kaul’s argument is that judicial independence depends not only on constitutional provisions but also on the conduct of those who occupy senior judicial offices. Institutional conventions, he suggests, can either strengthen safeguards or gradually weaken them.
The issue is particularly important in judicial appointments because the individuals selected today may decide constitutional disputes, fundamental-rights cases and challenges involving the actions of future governments.
Maintaining public confidence requires a process that is not only independent but also seen to be independent.
Why the Memoir Matters
The significance of Without Fear or Favour lies in its account of internal disagreements within the Supreme Court during a period when judicial appointments and relations between the government and the judiciary remained contentious.
Former judges are entitled to explain their experiences and offer assessments of the institutions in which they served. Such accounts can contribute to public understanding, especially when they concern procedures that are not always visible outside the Court.
At the same time, memoirs are personal recollections rather than judicial findings. They may illuminate disagreements and institutional concerns, but individual claims must be distinguished from facts established through official records or independent investigation.
Kaul’s criticism should therefore be understood as one former judge’s assessment of how the appointment process and administrative engagement with the government were handled during Chandrachud’s tenure.
Its wider importance lies in the questions it raises: Should the Collegium consult the government before formally considering candidates? How should executive concerns be communicated without compromising judicial independence? And what safeguards can prevent informal practices from becoming binding expectations for future Chief Justices?
These are questions that extend beyond the relationship between two judges and go to the heart of India’s constitutional arrangements.
Conclusion
Justice Sanjay Kishan Kaul’s criticism of former CJI D.Y. Chandrachud has brought renewed attention to the delicate relationship between the judiciary and the Union government.
By arguing that Chandrachud was “more deferential than necessary,” Kaul has questioned the approach taken to judicial appointments, raised concerns about the timing of government consultations and described disagreements over the handling of the PMLA reconsideration proceedings.
Chandrachud, for his part, has said he needs to read the memoir before responding fully and has defended the respectful and deliberative nature of Collegium meetings during his tenure.
The controversy should not be reduced to a personal dispute. Its lasting significance lies in the constitutional principles it brings into focus: judicial independence, transparency in appointments, accountability within the Collegium and the need for clear boundaries between the judiciary and the executive.
Ultimately, the strength of India’s judicial system depends not only on who appoints its judges, but also on whether the process preserves independent judgment, withstands undue influence and maintains public confidence in the rule of law.
The Indian Express — Detailed reporting on the memoir and Chandrachud’s response.
The Wire — Interview discussing Kaul’s allegations and judicial independence.
Rediff — News report summarising the key claims.
