In an interview to Karan Thapar for The Wire, former Justice Sanjay Kishan Kaul, who was the senior most puisne judge during the tenure of Chief Justice of India D.Y. Chandrachud, made some critical revelations from the time, especially in connection to CJI Chandrachud’s handling of government decisions, particularly in judicial appointments. The interview comes in light of the publication of his memoir, titled Without Fear or Favour.Karan Thapar: Hello and welcome to a special interview for The Wire. My guest today is one of the most highly regarded former judges of the Supreme Court. He has just published his memoirs. It is called Without Fear or Favour, and here is a copy of the book. It is a very accurate title, for the book contains some devastating revelations that are at times not just disturbing but possibly disillusioning. My intention today is to discuss several of them. Joining me now is the author, Justice Sanjay Kishan Kaul. Justice Kaul, let us start with your relationship with Justice Chandrachud when he was Chief Justice of India. You were the senior-most puisne judge at the time. You have known him for four decades, and you often refer to him in your book as Dhan. Yet there were many occasions when the two of you were at odds with each other, and some of the instances, how shall I put it, are disturbing as well as inexplicable. Were you disillusioned with Justice Chandrachud’s functioning as Chief Justice?Justice Sanjay Kishan Kaul: Karan, Dhan was someone of whom much was expected. At the beginning of his tenure, I had told him that I would be there to help him. I do not believe it is the second judge’s role to keep undermining the Chief Justice. The idea is to support. But perhaps we were different people in our ways of thinking. I felt that in dealing with the government, especially on judicial appointments, we should have been firmer. That was my view, and it is known that pursuant to an earlier judgment of the three-judge bench of which I was a party, we had tried to lay down timelines for judicial appointments. A contempt petition was filed and I had issued notice, not as a contempt proceeding strictly, but as a notice to ensure that the government was compelled to make appointments. Our judicial system, as it stands, suffers from inadequacies in several areas, and there is considerable criticism on this account. So if we do not have judges, and the right kind of judges at that, it creates serious problems. That is one aspect where I think we differed.Karan Thapar: What you are saying, Justice Kaul, is that Justice Chandrachud often did not live up to the high expectations people had of him?Justice Kaul: Yes, I would say the expectations from him were considerably higher.Karan Thapar: Let us start with what is perhaps the most disillusioning incident in your book, as I read it. You were handling a Prevention of Money Laundering Act case when an attempt was made to take the case away from you, and that could only have been done by the Chief Justice himself. You write, “It drove a wedge between the Chief Justice and me.” To ensure accuracy, could you recount the main details?Justice Kaul: When sitting on a bench, these matters would go to different benches. A couple of them came to me as well. I thought it better to take them up on a three-judge bench. My bench would generally sit as a three-judge bench, though sometimes as a two-judge bench. So I deferred consideration of this to when I would be sitting on a three-judge bench. In the meantime, one of my colleagues informed me that a particular matter had gone before another bench, which disturbed me greatly. I did speak to the Chief Justice about it, and he said that one of the judges had passed an order consolidating all the matters before herself and her bench. To which I said that this could not be done without the Chief Justice’s concurrence. I told him plainly: if you do not want me to hear these matters, just tell me. I have no great anxiety about hearing every kind of matter. But a matter should not be taken away from a J1 in this manner. He understood my position and subsequently constituted a three-judge bench consisting of myself, Justice Khanna, and Justice Bela Trivedi. The consolidated matters were then placed before our bench, which commenced hearing them. Unfortunately, the hearing did not conclude.Karan Thapar: But you revealed something very disturbing, truly disturbing, about what happened when you were part of that three-judge bench. You write, and I am quoting you, “One morning I was called to the Chief Justice’s chamber, where Justice Khanna also happened to be present, and was asked whether I really wished to proceed with the matter.” You were then told to be cautious and to take a middle path. You write, “It was then put to me that caution must be the wiser course and that perhaps I should take a middle path.” What was the message the Chief Justice was trying to convey? Can you spell it out?Justice Kaul: When I was called for that meeting, it was in the middle of the hearing. What was put to me was that some lawyers and members of the legal fraternity were reportedly talking about why, so close to my retirement, I was pursuing this matter. The matter had been taken up by me earlier, and it so happened that the government sought more time, which is how it came to fall within less than a month of my retirement. I told him plainly: what would people say, that I am taking money for this? If after 22 years on the bench I allow myself to be moved by such concerns, I have not done my job. My integrity is something I value greatly, and I will not compromise it because someone is trying to pressure me. I said that throughout my judicial career I have never taken the middle path on anything. If I felt something was right, I went ahead with it.After that discussion, we decided to proceed with the matter, and both Justice Khanna and I walked to the courtroom to continue the hearing. Unfortunately, by the time the petitioners’ side of the hearing was concluded, the Solicitor General said he needed more time to respond. We still had an hour remaining, so I asked him to proceed, pointing out that he had been party to the earlier hearings and decisions and should therefore not require much time, especially knowing that I was running against the clock. We discussed the matter among ourselves, and since the view of the other judges on the bench was that we should grant the time requested, I realised it would not be possible for me to conclude the hearing. That is the stage at which we said it would have to go before another bench, and that is where it ended. I do not know whether the matter has seen the light of day since then.Karan Thapar: But is it not extremely unusual for the Chief Justice to summon the second senior-most judge to his chamber and advise him to be cautious and take a middle path? That is not the Chief Justice’s role at all, is it?Justice Kaul: Well, I do not exactly recall whether it was him or Justice Khanna who put it in those terms, but the thrust of the discussion was whether I would like to proceed with the matter. Given that people were reportedly talking in this manner, would I prefer to let it go to some other bench? I said that the petitioners’ side was nearly concluded, and I thought we could finish the matter. The petitioners took perhaps a little longer than I had anticipated. The respondents would have then begun, and it would have taken perhaps another day or so the following week. We were at the end of the week. That is how it was, but that is not how it concluded.Karan Thapar: You write in your book, and I am quoting you, “The concentration of administrative power in the office of the Chief Justice, exercised without adequate checks, and at times under pressures that had nothing to do with the merits of the case or the competence of the judge, had proved to be the problem.” Are you suggesting the Chief Justice was acting arbitrarily, even autocratically?Justice Kaul: The debate on the Chief Justice being master of the roster has continued for a long time. The ruling of the court has been that the Chief Justice is the master of the roster. I have myself served as Chief Justice of two High Courts, so that is a different capacity, but the principle is the same. I do believe that the Chief Justice carries the burden of fixing the roster.Also read: CJI Chandrachud ‘Had Already Taken’ Govt Approval for Judicial Appointments: Ex-SC Justice KaulBut overall, in most High Courts, even though the Chief Justice is the master of the roster, I think there is a better mechanism for administrative discussion. The Supreme Court is a very registry-oriented court, possibly the only registry-oriented court, in contrast to the High Courts. So the discussion is largely between the registry and the Chief Justice about what needs to be done. It is the final court. Periodically, this issue has been raised as to whether the concept of master of the roster should be expanded to include some other judges. But most of the time, the conclusion has been that the Chief Justice should continue to be the master of the roster. That is the judicial view, and that is where the matter rests.Karan Thapar: Something very similar happened again just before you retired. This time, it concerned judicial appointments and the functioning of the collegium. Specifically, it related to the transfer of four judges of the Gujarat High Court. The matter was listed before you for the 5th of December, roughly 20 days before you retired, but suddenly you found it had been deleted overnight. Was this because people feared, and indeed the Chief Justice feared, that your handling of the case could have embarrassed the government?Justice Kaul: It is very peculiar. In periodic discussions with him, I had put it to him that if he held the matter over, things would not move forward. I am sure he must have tried. So we used this judicial matter to give things a gentle push. I would call the Attorney General. In the earlier period, Mr. Venugopal was in that role. I would tell him that he was the Bhishma Pitamah of the bar and that it was, in some measure, his duty to do something, and each time something would indeed happen. So what was happening was that we were slowly pushing things forward in the handling of that matter. I do not know why the matter was taken away at that stage. Naturally, the petitioners were very aggrieved and they brought it to the court’s attention. I called the concerned Registrar of the Supreme Court to the court. He came and said he would meet me at lunch and explain. Not wanting to embarrass him in open court, at lunch he told me that there was a noting on the file suggesting that when the matter was assigned to me two years ago, some formal permission from the Chief Justice had not been taken, and it was therefore deemed fit to withdraw it. I did speak to the Chief Justice about it. I told him plainly that this was not how things should have been handled. I had just one more sitting left. If he did not want me to handle it, he could simply have told me. The matter could have been assigned to another bench after I demitted office. Unfortunately, I believe the matter has never seen the light of day.Karan Thapar: In fact, the excuse given to you, that a noting on the file two years earlier was possibly the grounds on which the case was taken away from you, is nothing but a lame excuse. The truth is the Chief Justice, as you yourself said a moment ago, probably did not want you to hear the case.Justice Kaul: That does seem to be the reason.Karan Thapar: In fact, you write, and I am quoting you, “The Chief Justice was under some pressure.” How do you explain this? After all, the Chief Justice cannot be sacked. Why then did he allow himself to come under pressure?Justice Kaul: He must have believed that I should not handle the matter.Karan Thapar: Was he nudged by the government into that belief?Justice Kaul: That is difficult for me to say, and there are portions I have redacted. There are two places in this book where I redacted what actually happened, because I thought a measure of discretion was the better course.Karan Thapar: Absolutely, but the truth is, and I press you on this, I will underline it for the audience: when you deliberately choose to redact a portion of the story, you are protecting the Chief Justice, are you not? Otherwise it would embarrass him.Justice Kaul: Well, I did not want to embarrass the system in certain matters. That is how I look at it.Karan Thapar: All right. The funny thing is, something similar happened a third time. This time it was over the appointment of senior advocates. Although you and Justice Chandrachud had discussed the matter and agreed, you write, “The last date for submission of forms kept getting extended, peculiarly, indefinitely.” And then you write, “I later learned that certain people had advised Dhananjay to keep extending the deadline and not to proceed while I was still on the bench because, so the suggestion went, I would be tough on the process.” And the truth is, the designations were only decided after your retirement. So this was a deliberate attempt to keep you out of the process.Justice Kaul: Well, the then president of the bar came forward saying that he was asked to keep seeking extensions because it was felt that Justice Bhat was there, I was there, and someone else was there, and that we might take what they considered a more conservative view of who should be designated. But I am surprised, because we had discussed this issue, and it had earlier been decided that it should not be a complete bonanza, but that, given the considerable period of time that had elapsed since the last designations, we should be considering anywhere from 25 to 30 people for designation. Ultimately, of course, the Supreme Court designated over 50 people in that lot.Karan Thapar: When you say that the president of the bar council told you he was asked to keep seeking extensions, I presume he was told that by the Chief Justice. No one else could have told him.Justice Kaul: He seems to have written that somewhere as well. He wrote a letter or something when things did not go well between the Chief Justice and him, stating that he was asked to defer the meeting held for designation purposes.Karan Thapar: Right at the end of your book you write, and I am quoting, “I never understood why he, that is Chandrachud, chose to create so many small difficulties in those last weeks as I was on my way out.” Can you give me and the audience an idea of what sort of difficulties they were? Was Chief Justice Chandrachud seeking to thwart you?Justice Kaul: Nalin and I go back a long way. I think we began well. I thought I had a job to do, which was to assist him and advise him, and to the best of my ability I did that. He would discuss most things with me, including elevations, transfers, and other matters. There would be prior discussions with me before he took anything to the collegium. I think a slight difference of view began in July, over a particular collegium meeting which I have discussed in the book, where I felt the rationale, having already agreed to a particular person’s elevation, was such that I could not be party to the proceeding. The meeting was deferred and only held sometime in November, when the concerned person who had been agreed upon was elevated. From that point, several things happened in close succession. That collegium episode occurred, then the elevations were done, then there were discussions over who should be Chief Justice in the vacant positions, and we agreed on almost all of them except Delhi. That meeting was also held a day after I demitted office.The designation of senior advocates kept being deferred. Then there was the PMLA matter being dealt with in the manner I described. But what troubled me most was the withdrawal of the judicial appointments matter. I thought that was simply not done. We shared the kind of rapport where he could easily have told me what his difficulties were.Karan Thapar: But he didn’t.Justice Kaul: But he didn’t. Except for one aspect, which I have redacted.Karan Thapar: But the truth therefore, Justice Kaul, is that he was thwarting you.Justice Kaul: He did not want me to go ahead. That is how I would put it.Karan Thapar: There is one more rather disturbing incident concerning Justice Chandrachud that I want to touch on. During a collegium meeting when you were selecting judges for elevation to the Supreme Court, you write, and I am quoting you, “The Chief Justice drew me aside into a separate room and wondered aloud whether he should telephone out to check the government’s view.” You add, “I told him to see sense — he could not in the middle of a collegium do such a thing.” Was Justice Chandrachud seeking to please the government?Justice Kaul: I do not think it was a question of pleasing the government. What had happened, as I have recounted, is that we had discussed the names earlier. We had agreed on five names, and I thought the collegium would be quite amenable to them, because I also shared a decent rapport with the other members of the collegium. Then, as we were going into the collegium meeting, a sixth name was put to me at the last minute. I said that name was not acceptable to me and would not be acceptable to the others either. He wanted me to come on board and support the name. I said that even if I agreed, the others would not, in my belief. That is precisely what happened in the meeting. I told him it would not get through because I knew the views of the other collegium members. Possibly he had already received some form of prior approval for the other names, including the sixth name.Also read: Taking Stock of Chief Justice D.Y. Chandrachud’s LegacyKaran Thapar: Already taken approval from the government in advance of the collegium even deciding?Justice Kaul: This has unfortunately become a practice: names are discussed and some form of prior discussion with the government takes place. That used to happen, certainly, and it has been happening both before and after. That is what troubles me. That is why I have written that when the government introduced the NJAC, we would at least have sat across the table and discussed matters openly. It could have been fine-tuned and modulated, instead of this whole concept of pre-approvals followed by placing the matter before the collegium.Karan Thapar: You make a very pertinent point about what you call pre-approvals. You write, and I am quoting you, “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.” That, you say, sends the wrong signal. And then you pointedly add, “I believed he, that is Chandrachud, was too deferential to the government on appointment matters.”Surely, Justice Kaul, it is worse than that. Justice Chandrachud was actually undermining the collegium system by consulting the government to secure approvals before the collegium had even decided. That is undermining the system.Justice Kaul: He believed that this was how it had been done. My view was that with a Chief Justice of his calibre, with a two-year tenure and the standing and trust he commanded, if he proceeded in this manner, his successors would have difficulty not following the same practice, given that they would have shorter tenures and the government would become accustomed to a particular methodology before Supreme Court appointments were made.That is why I endeavoured to discourage him from discussing everything with the government beforehand. I have always believed that the government makes some suggestions, that discussion takes place, and then the matter comes to the collegium. The collegium then considers which of the government’s suggestions to accept and which to decline, and takes a final view. That is how I believe it has been done at the Supreme Court level, even in the past.But if you discuss the entire list with the government beforehand, it creates its own problems and dynamics.Karan Thapar: It creates more than just problems, Justice Kaul. It actually legitimizes government interference in the appointment of judges.Justice Kaul: Judges have been appointed without government concurrence for a long time. It is a question of how and at what stage the discussion takes place. I do not think the concept of discussion itself is problematic, but the manner and timing of it is.Karan Thapar: What is certainly bad is thinking that you should ring the government before the collegium has even decided, to find out what the government thinks of your choice.Justice Kaul: I was surprised. I think he was somewhat troubled by the fact that the sixth name was not getting through, and I think that was probably what prompted it.Karan Thapar: Let me wind up this section of the interview before moving to the next. As you look back on the years you spent as puisne judge and senior-most puisne judge to Justice Chandrachud, was Justice Chandrachud a weak Chief Justice, or was he simply too eager not to displease the Modi government?Justice Kaul: There is a judicial side and an administrative side to the Chief Justice’s powers. I would not be overly critical of the judicial side. I believe he had both the intellectual heft and the capacity and hard work to do so. But in terms of consultation with the government, I felt he was more deferential than necessary to carry it forward.Karan Thapar: That is a damning thing to say. Forgive me for being blunt.Justice Kaul: Well, I have tried to be as blunt as possible, at the cost of something I debated for a long time whether to write or not.Karan Thapar: But it is particularly damning for a senior colleague of the Chief Justice to say that he was deferential to the government.Justice Kaul: On administrative issues, I think there was simply too much discussion.Karan Thapar: With the government?Justice Kaul: Yes.Karan Thapar: I think a great many people will be shaken by what you have revealed, and I am grateful to you for your honesty, your candor, and the courage to tell the Indian people the truth. I am truly grateful. Let me come now, Justice Kaul, to the second major issue I want to raise with you. In a way, we have already touched on it, but I will go into it in greater detail now: how the collegium functions. You write that until Justice U.U. Lalit changed the practice, judges were elevated to the Supreme Court without their judgments being read or considered. You say, and I am quoting you, “No structured mechanism existed for collecting and analyzing judgments before considering appointments.” Elevations were made based on soundings and purely informal personal impressions, and I have to say that is simply bizarre. How can you be certain of the quality of a judge if you have not read or studied his judgments?Justice Kaul: This is an impression I have held for a long time. When Justice Lahoti was the Chief Justice, even then, being a relatively puisne judge at the time, I felt I could take the liberty of raising it with him. I asked him whether, when collegiums were convened, the judgments and the disposal records of the judge under consideration were placed before the members. I believe those are two important factors. Integrity is something you are generally able to discern. He also felt that members are broadly aware of what a judge writes, because judgments come up to the Supreme Court. I said there may be cases where a particular judge’s views have not been perused. I wanted to understand whether this was how it actually worked. He acknowledged that there was no formal system of making a judge’s judgments and disposal available to the collegium.When I stepped into the collegium, initially under Justice Ramana, towards the end of his tenure, when he wished to convene a collegium, I told him clearly that I was willing to be part of it, but I said that if any names were to be put up for elevation, the judgments and disposal records of those judges must be made available for me to study before the collegium meeting. He felt the time was too short and said this was not the practice. I said it should become the practice. So we did not hold a collegium meeting. Fortunately, Justice Uday Lalit, as the next Chief Justice, was in agreement with what I was saying, and it did happen. And even during Dhan’s tenure as Chief Justice, it always happened. When we considered someone for elevation, judgments would be circulated in CD form, allowing us to review significant judgments before coming to the meeting.Karan Thapar: But let me underline the point I made. Most people will agree with me that it is simply bizarre that judges are chosen, including for elevation to the Supreme Court, without their earlier judgments being perused, studied, analysed, and deliberated upon. That does shake confidence in the collegium system.Justice Kaul: There are different stages of elevation. If you look at elevations from the subordinate judiciary, prominent judgments are called for and perused by the High Court collegium. The disposal record is examined. So at the High Court level, all of this is done. The second category is people elevated from the bar. There too, the candidate is asked to disclose cases in which they appeared in a prominent role as lead counsel, the number of reported judgments, and all such material is collected. Somehow, at the Supreme Court level, it was felt that the judge had already been in the system long enough for people to have formed an impression of him. The Chief Justice would come and say these are the proposed names, and if anyone had an objection, it would be raised and addressed. Otherwise, there would be consensus. But there was no formalised procedure to ensure that a judge’s judgments were made available for perusal by the collegium.Karan Thapar: Let us come at this point to the quality of people who are often elevated by the collegium. You discuss in your book at some length how Justice Pradeep Nandrajog was never elevated to the Supreme Court, and you also mention how personal likes and dislikes affect the collegium’s decision-making. You write, and I am quoting you, “This was perhaps the system’s deepest flaw: the appearance of objectivity masking what were, in many cases, intensely personal decisions.” It seems to me, Justice Kaul, that often for frivolous and avoidable reasons, the best people are not always elevated.Justice Kaul: Some of the best are indeed elevated. But at times, some are left out because the collegium dynamic is what it is. If there is a prejudice against a judge, or sometimes no discernible reason at all, it does happen. My own observation is that it often occurs when people are from the same court. Relationships formed in the same court, between one who is in the Supreme Court and one who is not, can sometimes be affected by this process.Karan Thapar: But it is deeply regrettable that personal likes and dislikes affect whether a deserving candidate gets elevated.Justice Kaul: Yes, it is.Karan Thapar: The opposite is also true. There are cases where the collegium holds back from recommending names it believes the government will oppose. Your book clearly suggests this is what happened in the case of Justice Akil Kureshi. And that raises a key question: what is the point of the collegium if it is going to tailor its recommendations to the government’s tastes and preferences? The whole object of the collegium is to be independent and to give names to the government which the government may or may not want, but which the collegium insists upon because they are the best. You do not tailor the recommendations to suit the government’s preferences.Justice Kaul: Soon after my elevation, Justice Kurian was recommending Justice Joseph’s name. That took some up and down and went through a prolonged process but he was ultimately appointed. My own view was that if the collegium is consultative enough and recommends a name, the government will by and large agree to it. So why should we be constantly apprehensive? But as I observed the working of the collegium from within, I felt there were instances where someone was strongly of the view on merit that a particular judge should be elevated, but the feeling was that it might not get through. So why bog everything down? Better not to send a name that faces very strong opposition from the government.Karan Thapar: The government also, it seems from your book, insists at times on quid pro quos. It is equally disturbing that the collegium often comes under pressure from the government to make appointments that the government wants. You write about an occasion when the government wanted an unsuitable candidate to be made Chief Justice of one of the larger High Courts. In the end, the government backed off when the collegium agreed to make him Chief Justice of a smaller High Court. But the truth is, he was still an unsuitable candidate. Why is the collegium in such cases unable to stand firm? Why can it not say to the government, “No, we will not accept. This is wrong”?Justice Kaul: That person would have been due for elevation as a Chief Justice. I felt he could not go to a larger court. I was not per se against his elevation as Chief Justice of a smaller court.Karan Thapar: Well, if he cannot go to a larger court, how is he suitable for a smaller one?Justice Kaul: The challenges of a larger court are considerably greater. You need administrative acumen of a much higher order. A Chief Justice must have two qualities to succeed. One is judicial leadership, which is the command of legal knowledge that allows him to lead and be accepted by his colleagues. The second is administrative capability. A great deal of administrative work has to be done, and administrative leadership is important. Not always do we find someone with both qualities in equal measure. There may be people who excel in one but not the other. When I say he was good enough for a smaller court, there was nothing against him as such, but he was not someone who could have handled a larger court. On reflection, I think the Chief Justice shared this view as well, but the task of conveying this to the government was assigned to me, and I said I had no difficulty undertaking it.Karan Thapar: I hear what you are saying, Justice Kaul, but many will find it difficult to accept the explanation that someone is unsuitable to be Chief Justice of a larger High Court but it is acceptable to send that same unsuitable candidate to a smaller High Court. That is disregarding the importance of states like Tripura, Mizoram, Meghalaya, and Manipur. Those are all smaller High Courts.Justice Kaul: That is precisely what I am trying to emphasise. The administrative burden in a smaller court is not as great as in a larger court. It is comparable to a portfolio in a cabinet: you may have handled a smaller portfolio, but you would not hand a very large and demanding portfolio to the same person. Similarly, one may be unsuitable to lead a larger court, but if you look at their abilities on both the administrative and judicial side, you may feel it appropriate to send them to a smaller court first. And indeed, there have been cases where a person has served in a smaller court, delivered well, and been moved to a larger one. I would enter a caveat here: sending someone to a smaller court is not necessarily a reflection of their unsuitability. It may simply mean they need to demonstrate their capabilities in that setting before being entrusted with a larger court, while others are sent directly to a larger court because you already have the confidence that they can handle it.Karan Thapar: Let me come to one other case you write about, where the level of communication from the government is once again deeply disturbing, if not utterly disillusioning. There was an occasion when the collegium wanted to elevate a senior judge whom you considered, and I am quoting you, “competent and with a good reputation.” The government asked whether additional representation of minority faiths was really required. And this was followed, you write, by a further query voiced by the Chief Justice, which you found rather bizarre. The government wanted to know which caste the candidate’s family had belonged to before they converted to another faith. This seems to suggest that the Modi government prefers Hindu judges and preferably upper-caste judges as well.Justice Kaul: This is what the Chief Justice relayed to me as a caveat to that name. But if you look at the elevations overall, I think we did attend to community representation, and we did take caste into account as well, though there are no formal reservations. I do not think only upper-caste judges are elevated. I belong to that social group myself, but I can say this having been party to elevations, including in Chennai, where I recommended 46 judges drawn from every caste and community.Also read: Full Text | ‘The Seven Mistakes of Ex-CJI Chandrachud,’ According to Justice Madan LokurKaran Thapar: Forgive me, Justice Kaul. I was not questioning the collegium in this instance. I was questioning the government’s response. The government wanted to know whether additional representation of minority faiths was really required. The government wanted to know what caste the candidate’s family had belonged to before they converted to another faith. It is the government’s response that people will find disturbing, if not disillusioning.Justice Kaul: When the government feels that you are trying to accommodate certain representations, it may ask how many people from different minority communities are sufficient. I do not think there has been any serious problem with people from different castes and communities coming to the Supreme Court. That has not been an issue in my experience within the collegium. But the government possibly wanted to assess whether another appointment from a minority community was required at that particular moment.Karan Thapar: You mean no more Muslims?Justice Kaul: No, the person was not a Muslim.Karan Thapar: So no more Christians?Justice Kaul: Whether it was required or not, we had representation from the Muslim community, we had representation from the Parsi community and many other communities. But immediately you need one to one another person is what may have concerned the government. I believed the person was the senior-most judge from that court and was competent. It was not merely my view but a general consensus within the collegium that this person should be considered for elevation.Karan Thapar: But do you know what conclusion people listening to this interview will draw? A deserving candidate who should have been elevated was not, because the government implied it did not want more Muslims or Christians. That is a deeply disturbing conclusion to arrive at.Justice Kaul: But the person was ultimately elevated with the government’s concurrence, when I convened a collegium for that purpose.Karan Thapar: I am delighted to know that in this instance you convened the collegium and ensured the elevation went through, because I was going to ask you: given that the collegium’s own rules state that once a name has been reiterated, the government must accept it, why, to take the example of Saurabh Kirpal which you cite in your book, does the government continue to block collegium recommendations while the collegium does nothing? Why is the collegium so helpless when the government blocks its recommendations, even when those recommendations have been reiterated? Why not use the power of contempt?Justice Kaul: The reiteration of a name has been a problem in more than one case. At times the government has held firm. A first recommendation is sometimes returned, sometimes simply placed on hold. When reiterated, it may again be kept on hold. There is more than one such example. Appointments to the courts from the 1950s onwards have always involved a collaborative effort between the government and the judiciary. At some point, through judicial intervention, the collegium system was introduced in the 1990s, not to the satisfaction of any political formation, because they felt they were losing something that the Constitution had granted them. That created its own tensions. It worked well initially, but over time many challenges arose in the appointment process through the collegium. When these situations arose, we tried to lay down timelines and guidelines, which were set by a three-judge bench of which I was a member, presided over by Justice Bobde.Karan Thapar: But none of those timelines and guidelines worked. The government, when it wishes to block even a reiterated or doubly reiterated name, simply continues to block it.Justice Kaul: The fact is, that is how it has been happening. The political establishment always feels that, despite having passed the law on the NJAC unanimously, only to have the court strike it down, this is something that rankles them. It is a form of payback.Karan Thapar: It is payback.Justice Kaul: The political system feels deeply aggrieved by it.Karan Thapar: But why not use the power of contempt? In an interview he gave me nearly five years ago, Justice U.U. Lalit, just after he had retired, said that the power of contempt should in fact be used. He said it should be used against the Law Secretary, not the Law Minister, but it should be used when reiterated and doubly reiterated names continue to be blocked. And yet, the Supreme Court has that power and does not exercise it. Why?Justice Kaul: When it came before me, it was in the form of a contempt matter. In my wisdom, or lack thereof as you may judge, I preferred to issue notice and push things forward gradually. And I believe it was working, not fully, but reasonably well.Karan Thapar: Even with the Modi government blocking most of the names? Look at Saurabh Kirpal: he has been blocked for five years.Justice Kaul: That is why I said there are a couple of cases that are in a category by themselves. Saurabh Kirpal has declined to withdraw his name. The collegium did not wish to take the step of withdrawing it either. The government did not wish to make the appointment. So that name remains in limbo. I sometimes joke with him that this vacancy will only fall to him when he reaches 62, because there is no other appointment to the High Court that is currently pending.Karan Thapar: And all because he is deemed to be gay, which has nothing to do with either his legal acumen or his administrative skills.Justice Kaul: It is clearly a factor that he is openly gay.Karan Thapar: This is a prime example where the Supreme Court should have used the power of contempt.Justice Kaul: You may say so, but there is also a feeling that all appointment processes are, at their core, a collaborative effort between the government and the judiciary, even within the collegium system.Karan Thapar: It is not a collaborative effort, as you yourself have described. It is the government blocking and the collegium accepting.Justice Kaul: You are right. The collegium has at times simply, and informally, accepted the situation and let it rest rather than pushing it to its ultimate limit.Karan Thapar: Which is precisely the point I am making. What is the purpose of the collegium if you will not push the logic of your own existence to its limit?Justice Kaul: That is why, even after retirement, I have commented on the NJAC issue. I gave a couple of interviews on it and then stopped. I said I felt the NJAC should have been given a chance. It could have been fine-tuned. Perhaps, if the judiciary’s predominance had to be preserved, instead of a five-member NJAC, it could have been a six-member body. It could have been a five-member NJAC with the Chief Justice having a casting vote, to give the judiciary the predominance. Instead, it was struck down, with the political establishment becoming deeply antagonistic on this issue. They felt that how can a law enacted unanimously by Parliament be set aside by the court on the basis of something introduced earlier as the collegium system through judicial interpretation, rather than the clear words of the Constitution?Karan Thapar: Absolutely. And you write in your book, and I am quoting you, “The NJAC system ought to have been given a chance to work rather than being dismissed immediately by the judiciary.” And clearly, to some extent, your disillusionment with the way the collegium system was often functioning led you to this conclusion: the NJAC deserved a proper, fair chance.Justice Kaul: Yes, I feel the matter could have been handled differently. This is my personal view: it could have been left pending, to see how it worked, and then fine-tuned or tweaked as needed. If it truly created a direct impediment to the independence of the judiciary, it could have been struck down at that point. But I think a workable arrangement was feasible under the NJAC. What troubled me was that we wanted to preserve the independence of the judiciary and achieve a certain objective, but whether the collegium system was fully capable of achieving that, given such strong resentment from the government on this point, was an open question. Even when the NJAC was struck down, there was a final note where the government was supposed to take certain steps to improve the system.Karan Thapar: A memorandum as well.Justice Kaul: The memorandum was sent by the court. The government returned it with some suggestions. The Chief Justice then wrote back saying that was the final position. That should have put an end to the matter. But the government felt it required some further agreement. That agreement was never reached. So every time these problems arise, the memorandum gets thrown into it that this is not a finalised memorandum. From the judicial perspective it is finalised. From the political perspective, it is not. And the problem continues each time judges have to be appointed. That is the sad reality of it.Karan Thapar: And the problem continues each time judges have to be appointed and that’s the sad part of it. We have a system that is not functioning anywhere close to perfectly.Justice Kaul: Absolutely.Karan Thapar: Justice Kaul, I thank you for the time you have given me. Once again, I thank you for your honesty and candor in speaking both about Chief Justice Chandrachud, who as you said did not live up to the high expectations held of him, and also for speaking so revealingly about the collegium and the way it often functions, which is frequently not what it was meant to do. I am deeply grateful to you. Take care. Stay safe.Justice Kaul: Thank you.Transcribed by Ramsha Sartaj and edited lightly for clarity and flow.