Governments have always preferred judges who agree with them: Justice SK Kaul

Kaul’s central claim is that governments do not always prefer judges solely for their independence. He said governments in power, dating back to the 1950s, have generally wanted judges whose principles and philosophy broadly match their own. This matters because judicial independence depends on judges being able to decide cases without political pressure.

He separated court decisions from the administrative process of appointing judges. In his view, judges remain “largely independent” when deciding cases and can challenge the government in court. But appointment discussions and delays create a different set of concerns. He said the judiciary must stand firm rather than adapt its choices to government preferences.

Kaul also said the government could be willing to engage when the Collegium explains its reasons clearly. His comments add to the debate over appointments, delays, and the balance between India’s judiciary and executive. The broader implication is that the Collegium should deliberate independently before sending recommendations to the government.

The Collegium is the body that recommends candidates for judicial appointments in India’s Supreme Court and high courts. In the article, it is presented as a judicial forum where senior judges discuss and assess names before sending recommendations to the government. Its importance lies in giving the judiciary a central role in choosing judges.

The Collegium’s key mechanism is deliberation. Kaul said its members should first debate names independently and then send their recommendations to the government. He objected to the idea of seeking government views or “pre-approvals” before the Collegium had completed its discussion. Government engagement, he said, should happen after the recommendations are sent.

The system remains controversial because the government is involved in clearing recommendations, while the judiciary wants its assessment to remain independent. The article links this process to delays in appointments and repeated recommendations taking too long to clear. Kaul’s criticism focuses on preserving independent judicial decision-making during the appointment stage.

The Supreme Court Collegium consists of five judges. They are the Chief Justice of India and the four senior-most judges of the Supreme Court. This structure places appointment recommendations in the hands of the top court’s most senior judicial leadership.

Its role is to recommend judges for the Supreme Court and high courts. The article describes the Collegium as the body involved in discussing candidate names and forwarding recommendations. Kaul’s criticism concerned the order of that process. He believed the five-member body should debate names first, without seeking the government’s approval beforehand.

Kaul was a member of the Supreme Court Collegium from June 2022 until his retirement in December 2023. His account concerns a disagreement during that period, involving a proposed sixth name for a Supreme Court list. The article says the Collegium faces difficulties because recommendations and reiterated names can take too long to receive government clearance.

Kaul described a dispute with then Chief Justice of India D.Y. Chandrachud over the proposed inclusion of a sixth name in a list of Supreme Court candidates. Kaul said the candidate was unacceptable to him and to the rest of the Collegium. The disagreement was about the appointment process, not Chandrachud’s judicial work.

Kaul alleged that Chandrachud might have sought the government’s approval for names before the Collegium meeting. He objected to this approach because he believed the Collegium should discuss every candidate independently before involving the government. In his view, government discussion should follow the Collegium’s recommendation, not precede it.

Kaul described Chandrachud as “too deferential to the government” specifically in judicial appointments. He clarified that his criticism did not concern Chandrachud’s decisions as a judge. The dispute reflects the wider tension over how much influence the executive should have in appointments and how the Collegium should protect its independence.

When governments delay clearing recommendations, judicial appointments remain unresolved for longer. The article does not quantify the resulting vacancies or specify a particular case outcome. It does state that delays in appointments to the Supreme Court and high courts are a concern, making the clearance stage an important administrative issue.

The key mechanism is the exchange between the Collegium and the government. The Collegium recommends names, and the government must clear them. Kaul said recommendations and names sent again after reconsideration can take too long to be cleared. He argued that the Collegium should first complete its own deliberations, then send its reasons and names to the government.

The current reality is a continuing debate over delays and the relationship between the judiciary and executive. Kaul believes the government is generally willing to engage when the Collegium clearly explains its reasons. Faster, more orderly consideration would address the process problem he highlighted without weakening independent deliberation.

The tension comes from competing roles in judicial appointments. The Collegium wants senior judges to assess candidates independently and protect the judiciary’s freedom. The government is involved after recommendations are made, and Kaul said governments have historically preferred judges whose principles and philosophy broadly match their own.

Kaul’s disagreement with D.Y. Chandrachud illustrates the problem. He objected to government views or “pre-approvals” being sought before the Collegium had finished discussing names. He wanted the Collegium to debate candidates first, send its recommendation and reasons to the government, and only then hold the discussion with the executive.

The issue is still active because appointments and reiterated recommendations can take too long to clear. Kaul distinguished this administrative tension from judicial work, where he said judges remain largely independent and can take on the government. The future balance depends on independent Collegium deliberation alongside clear engagement with the government.

Judicial independence means judges can decide cases and perform their institutional duties without improper government direction or pressure. The article says judges remain “largely independent” in judicial matters and are capable of taking on the government. That ability is essential because courts may need to review or reject government actions.

The article also shows that independence involves more than courtroom decisions. Kaul distinguished judicial work from the administrative process of appointing judges. He said the Collegium should discuss candidates on its own before seeking the government’s views. If the executive can influence names before that discussion, the judiciary’s independent role in appointments may be weakened.

Kaul’s comments come during continuing debate over the Collegium system, delays, and executive influence. He urged judges to stand firm and explain their reasons to the government. The practical implication is that courts can preserve independence by making decisions freely and by keeping appointment deliberations independent before government clearance is sought.