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In an exclusive conversation on India Today, former Supreme Court judge Justice Sanjay Kishan Kaul addressed key revelations from his memoir, 'Without Fear or Favour', examining the delicate dynamics between the judiciary and the executive. Justice Kaul clarified his critique of former Chief Justice D.Y. Chandrachud regarding judicial appointments, stating, "We should not have some kind of a pre-approvals from the government." Emphasizing institutional independence, he noted that if judges remain firm and explain their rationale, the government is generally willing to cooperate. He reflected on the void left by late Union Minister Arun Jaitley, whom he identified as an effective bridge of trust between both organs of state. Justice Kaul also addressed caste calculations influencing appointments, the fallout of the struck-down NJAC, bench neutrality in sensitive cases like Rafale, and why judges need adaptation while facing relentless social media scrutiny.
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00:00joining us we are focusing on judges and the judiciary the custodian of the of the constitution
00:05well a former supreme court judge retired just a couple of years ago justice sanjay kishankol
00:11has now come up with a book a memoir without fear of favor where he has raised several important
00:18questions over the way judges are appointed over the relationship between the judiciary and executive
00:23and much more we just have done an exclusive interview with him me and my colleague anisha
00:29mathur our big takeaways judiciary needs to grow a spine jately like figure needed to bridge the gap
00:36between judiciary and executive reform judges appointment process says justice call caste
00:42community equations are a fight affecting appointments judges not used to social media
00:47scrutiny cockroach comment maybe should not have been made by justice uh surya khan internal politics
00:55in judiciary is worse than what we see in the political class several serious comments made
01:01let's go straight to that exclusive interview with justice call
01:10hello and welcome to this india today special without fear or favor a memoir by former senior
01:19supreme court judge justice sanjay kishankol has already stirred a bit of a controversy and a fierce debate
01:27largely because of some of the anecdotes and comments that the judge has made about fellow judges in the state
01:33of the judiciary
01:34and the book itself therefore raises serious questions about our higher judiciary and the judiciary executive
01:42relationship with me is my colleague anisha mathur who tracks the courts for us and the man of the moment
01:48justice call good to have you uh on the show justice call thank you very much for doing this thank
01:54you i have to start
01:56though uh with the controversy that's already been generated in the book over the comments that you've made
02:02over the former chief justice of india justice chandarchud suggesting he was far too deferential of the modi government
02:09and at least on one occasion was keen to seek pre-decision approval from the government of a judicial appointment
02:16even while the collegium was meeting to discuss names do you stick by your view that justice chandarchud was far
02:24too deferential of the government
02:26well uh i have not said that he was deferential of the government i've said he's deferential of the government
02:32in the appointment process
02:33so i've made a distinction between the judicial work and even between the administrative work
02:39it was my belief that the collegium must debate the names and send it to the government and that's the
02:45stage where a discussion with the government should take place
02:48we should not have some kind of a pre-approvals from the government that's the distinction uh i i would
02:55make
02:55so while i've complimented him on his judicial work i've said that uh the system required that
03:01if the collegium system has to prevail then it's true working style we should be debating the names only
03:07and then discuss with the government did you at any stage walk out or record your dissent
03:12because pre-approval was being sought by the government
03:15well if you see there were three stages at which names during my tenure came
03:20first was the first five names which were sent that's the episode i've said when at the last
03:26minute a sixth name sought to be introduced did not meet with the approval of anybody
03:31thereafter another two names were put up when the five names were still pending
03:35those two names i also agreed to but said that the seniority must be maintained that is
03:41the five names must come first and the two names later on that's how it happened
03:45the problem arose in the month of july when some name another name was debated
03:49we had in principle agreed but somehow there were some reservations which i have referred
03:54to from the government's point of view i have redacted some portion out of it
03:58it's at that stage i said that well if this is how the appointment have processes to go on
04:03i closed my files i said earlier also chief justice used to appoint and i would not like to participate
04:10in it please understand we have not parliamentarians who will make a walk out from parliament
04:14what you do in five people is saying that i'm closing it i'm not and he quickly adjourned the meeting
04:19next meeting was held only in the month of november we'll come to the collegium system and how the
04:25five judges meet to decide on appointments anisha has several questions on that but i just want to
04:30ask you all this is a controversy because these remarks uh justice call are coming at a time when
04:36there is a growing feeling that the higher judiciary is losing its independence and ceding far too much
04:41space to the political executive do you broadly agree with that that the higher judiciary is losing its
04:47sense of independence and ceding far more much far too much space to the executive see again i say
04:53there is a judicial process there's an administrative process i believe judges still are largely independent
04:59are capable of taking on the government in judicial matters but on administrative matters there are issues
05:05arising and that's on appointments and this is basically an appointment issue because appointments in
05:11the high court are stuck appointments in the supreme court are stuck reiterated appointments are stuck
05:16recommendations are stuck they are taking too much of time and three judges bench of the supreme court
05:22had laid down broad timelines i just want to push you though once more on this you say that the
05:29government
05:30has far more respect for judges with a spine yes but is there less and less space uh uh justice
05:37for
05:38judges with a spine does the government i want an honest answer does the government want judges who are
05:45amenable or differential well honest answer well starting from the history of the judiciary
05:52any government in power i'm saying from 1950s would like judges who broadly agree with their principles and
05:59philosophies and listen to them so if you are a person who who sticks out uh it would never be
06:07very
06:07palatable to any government it's no different with this government so it is for the judges to be able to
06:13stand i have related my own experience my own experience has been chandigaard chennai supreme court
06:20if you stick by what you are saying and in the process you explain to the government the reasons for
06:26it i
06:27said by in large i think the government is willing to play ball apart from the controversy over justice
06:34chandrachur in particular your book has mentioned what happened with the other previous cji's that you've
06:40worked under and at one point you've said that the politics among judges is you know more political
06:46than the politics among politicians themselves judgeon ki rajneeti bohat ziada hai
06:51and you have the anecdotes really to show it in your book but then what does that mean for the
07:03collegium system because the country is looking at the supreme court the country is looking at the
07:08question of appointments repeatedly particularly in the last 10 years we've seen the government
07:13coming out and criticizing the collegium system when you have so much rajneeti when you have so much
07:18personal equations playing a role where do you see the collegium system the appointment system and
07:25the larger debate so anisha if you see the collegium system why did it come the judiciary felt that
07:32there was too many pressures and this came in early 90s they wanted to insulate the judiciary from a
07:38situation in the appointment process so it's not something in the constitution it's a judicial
07:42interpretation and a bench which produced this concept of collegium system now it to my mind it
07:50worked fairly well at the initial stage thereafter everybody's own thinking processes and I think
07:56right in the towards the end of my high court tenure itself in Delhi I personally was of the view
08:01that
08:02this is not working as it should be working I've given example of putting this question to just a
08:08laurty on appointment process because I had the benefit of knowing him well and I was not satisfied
08:13that a process of appointment should not consider objective criterias like circulation of judgments
08:19disposal of the case cases those are factors integrity of course you will verify it's the first prerequisite
08:26the government of the day and the political class I would say brought in the NJC by a complete I
08:34would
08:34say not majority but unanimously except I think Steve Jett Malani dissenting I believe in I've said so that
08:41that collegium system could have worked and should have been given a chance with the NJC with the NJC
08:49it needed some tweaking to my mind the apprehension of the judiciary was right that if out of the six
08:55two are so-called independent members one is the law minister and three judges then clearing names would
09:00make it a four two scenario while earlier in discussions it was thought that there should be
09:05a five member committee instead of two one independent member that would have worked
09:10so the it could have been an endeavor to tweak that and say only a five member committee or the
09:16chief justice
09:16could have been given a casting vote or the matter could have been kept pending for the time being and
09:21let it
09:22work for some time this has become a great angst between the political class as a whole and I'm
09:27saying it's not the judicial it's not the government of the day alone if a new government comes they'll do
09:32the same they feel the constitution makers gave them a say in the appointment of judges you are seeking
09:37to deprive them of that say the net result is this this uh kushti which goes on between uh the
09:45collegium recommending the name then the government at times not being happy sitting on it
09:49then sometimes recommending back reiteration of name sometimes takes place those reiterations don't
09:54go through and too much time is consumed in this process you've in fact said it in so many words
09:59that
09:59the political class hasn't gotten over the njac judgment absolutely absolutely i'm sure you interact
10:04you talk across the political class and i have the uh now it's not a problem having uh post-retirement
10:11to be able to talk all of them say you know you're very interestingly mentioning that you've got to look
10:18at
10:18caste and community also when you're appointing judges because in one instance you tell us in the
10:24book how the government reportedly wanted to know the caste of a minority community judge before his
10:31family converted i mean what does that suggest that rather than look at competence integrity the
10:38government of the day wants to know the caste of a particular minority community judge before
10:43uh uh his family got converted i mean are you okay with that so uh normally if we did uh
10:52say in the
10:52two states i was you consider minority a minority so you look to representation of the in especially
10:59in chennai a christian community the muslim community and anywhere for that matter obcs uh mbcs
11:07uh the upper caste etc in fact for a person like from delhi you are i mean i must confess
11:14i was quite
11:14unaware of these dynamics because delhi courts do not have any of these caste community angles so one of
11:21my colleagues used to joke that you can become a backward commissioners chairman because the amount of
11:25you know you have to get into but to make the system work india is not one unit it's various
11:30units
11:31some places this plays a more important role see chandigarh played a most important role but chennai i
11:37could not have worked because that's how the society is there but i don't think it's then required to
11:42look at it from where that person is coming i'm going to go back to the caste question because you've
11:48given these examples whether it's panjab whether it's chennai how caste equations in the states have
11:53greatly affected something as basic as transfer postings in the district judiciary and as
12:00somebody who's been covering courts for a while now we are we have seen multiple instances where
12:06allegations come up that judges are biased caste equations come into the picture when uh judgments
12:13are being considered when cases are being considered and when there is so there is such serious question
12:19of caste equations in appointments even at the district levels in transfers in the district levels
12:25what does this really say about our judiciary how we are able to create this question because judiciary
12:34is supposed to be above it all so to speak but clearly it's not see judiciary is part of the
12:40same
12:40society those people are not dropped from the sky so where our society is so caste oriented you can't do
12:48otherwise you know from chennai periodically it comes so they will look at the percentage of of your community
12:54and say well they should not be more than these many from that community but there are some methods
12:59at district level you say so one method i tried in chennai was i found out in each district which
13:04are the
13:04prominent castes invariably you will find judges would try to be around that area so i tried to dissuade that
13:11situation and ask them that people where that's a prominent caste should be sent to some other district
13:18it's an idea of breaking the caste nexus in some way in a different way in punjab haryana i said
13:23okay
13:24we have supervising high court judges for districts i said the haryana it's the same court so judges appointed
13:30from the haryana quota in the high court would look after portfolios of the punjab and the punjab judges
13:37would look after the portfolio of haryana these are small methods to see to bring a little greater
13:42objectivity to the situation when arun jetli was there there was at least someone who was there to
13:48build some kind of a dialogue yes between the judiciary and the executive is there no one there like
13:54that is that is that the kind of person you need someone who can bridge the divide that seems to
14:01exist
14:01between the judiciary and executive in terms of the trust factor do you need someone in government like that
14:06so i i feel there are two thumbs of the institution the political and the administrative thumb and the
14:13judicial thumb you need an interface okay mr jetli was a unique person in the sense that the judiciary
14:21had trust in him that he will not do something which is improper or not desirable and he interacted with
14:31judicial members quite well at a distance so when things were told to him that things were not right
14:37he also had the ears of the highest on the political side he was able to bridge that gap and
14:44i think his
14:45loss in my mind has been a great loss to the system because that interface went in fact i have
14:51related how
14:52once at a gathering it was his late mr jetli's son's wedding when the finance minister was there and
15:01i i was just talking to her she called for me and i just said well that's budget time so
15:06you must be very
15:06busy she said yes we miss mr jetli at these times so i said you miss mr jetli for more
15:11than one reason
15:12and the bigger reason is you have lost the only interface you had with the government but then there could
15:17have been a 0.6 mr jetli a 0.7 mr jetli to step in and be the interface somehow
15:24after that the government
15:25i believe has not evolved in interface with the judiciary there's been nobody to step in who has
15:31say he's a prominent lawyer has a confidence that if the judges tell him something it's not going to be
15:37misused will take it up with the government how to sort that problem out previous law ministers lot of
15:43them if you see have played that role but uh somehow after this uh uh this has not happened
15:51rijiju came for some time other ministers came for some time changes occurred i think the judiciary
15:56looks to a prominent legal face to have that confidence to get back to the government so in the
16:03rijiju period as when mr rijiju was law minister we see saw a lot of acrimony really when whether it
16:09was
16:10him making comments about the njac whether it was the dhankar uh mr dhankar episode that happened
16:17uh when you say there is no interface aren't we seeing an extension i mean an expansion of acrimony
16:23rather than interface between uh so this is you see you must know how to deal with the judiciary is
16:28how i say uh you can't be um honestly taking on the judiciary if you have to work it out
16:36you have to be
16:36the interface there were certain aspects where i think he was possibly too blunt but there were other
16:42areas where he did do something um i have an example for example i felt unnecessarily two daily names
16:49being detained and i took it up with them that you can't do this and i will take it up
16:54they were aware
16:56that the judicial matters before me this is give us some time we'll do it of course somebody lost
17:01seniority in the process but but it was done within 10 days and rang me up saying we've done it
17:06so it was not completely non-responsive but the equations never settled down i think that was
17:11the problem the reason we're saying this is also because in the book for example you were on the
17:15bench in the rafael case yes and and you mentioned how the moment the judgment is given you suddenly
17:21find yourself caught in a polarized political tug of war you know uh one side that loses out will
17:28immediately say that the that the judge has quote unquote sold out or is very close to the government
17:33that's why it's given this judgment all the more given the kind of cases that have come before the
17:37judiciary be it the ayodhya case rafael and this whole culture of sealed envelope that everything has to be
17:44kept within a sealed envelope do you believe that therefore all of this is leading to mistrust you know
17:50how are you going to build that trust given that there are these politically sensitive cases coming
17:55before the judiciary i think isn't our society very divided at this time see i i've seldom seen the
18:02society so divided as i see it today unfortunately so are the judges also caught in this political divide
18:07as a result they are not but they they suffer some extent consequences of this great divide for example
18:15when i wrote rafael i still remember a good friend of mine who was a liberal just said sanjay can
18:23i ask you
18:23how could you do this i said should i be writing what you feel like he admired me for mfsn
18:29which i
18:29wrote i said at mfsn's time i received a lot of criticism also there were people who thought i had
18:34stepped out of place to write that judgment this was the obscenity case of this is the mfsn case where
18:41his painting was sought to be prosecuted and you said i i i quashed this yeah there were people who
18:45admired
18:45what he'd done there were people critical of it you happen to be a person who admired my judicial view
18:51now i am doing this because my belief is there should be absolute liberty in writing there should
18:56be absolute liberty in paintings these are non-conformist issues but i don't believe the
19:02court should be stepping in to decide which gun to purchase which plane to buy because we step into
19:07very very quicksand positions and if there is a criminality to it you go to the criminal court to do
19:13so
19:13so what is happening is i have been saying that we are not here to protect the government
19:18but the judiciary is a check and balance we are not here to propagate the opposition's view because
19:24that's not the function of of of the court see let's see when the constitution makers came
19:30they could have we got democracy in absolute democracy a young nascent country when right to
19:36women were given by european countries later on we gave it to everybody equally they also decided that the
19:42that the the method of democracy would be first past the poll they could have said a proportional
19:46representation they could have said many other methods of democracy also now first past the poll means
19:52that most governments have ruled with less than 50 percent votes two percent votes swing here and there
19:59makes you lose completely or win completely so this feeling among with respect i say the political class that the
20:06people have given us a mandate and we must do our way without a check-in balance from the court
20:11is
20:12conceptually constitutionally wrong because the court has been made to be a check-in balance for this
20:19reason but it is also not in forum for if the opposition is not able to politically deal with the
20:25government
20:25don't ask the court to come and deal with it but you've seen in in justice surya khan's case even
20:30uh students the the students of nalsar didn't want him at their convocation ceremony so i mean it it's
20:36not just a dinner table anymore it's right round i mean what does it what does the chief justice then
20:41do
20:42in that situation i mean he finds himself being questioned constantly his comments on cockroaches have
20:47you know initiated this triggered this whole cockroach janta party movement surya khan today is being
20:53accused by his critics of being too close to the government see maybe the cockroach comment
20:58uh should not have been made but in a court when you have so many matters uh something escapes your
21:05lips which should not have escaped he possibly meant to say something else that fervorous petitions are
21:10very fine the correct order should have been that look if you agreed by the designation system you file
21:15a proper petition or if you're wanting protection you file a proper petition and come up i i think all
21:20of
21:20us have been in the process of learning we used to earlier talk much more as a judges supreme court
21:26i know
21:27i kept more quiet because you don't know who will derive what method and what meaning out of a
21:32sentence yet if the judge doesn't question the lawyer the lawyer doesn't get an opportunity to satisfy
21:40the uh what is troubling the mind of the judge so i always say a quiet judge is troublesome very
21:45very
21:45troublesome because you don't know how to persuade him similarly you know you have to sometimes lighten the
21:53court atmosphere i crack a little joke do something now with all this camera on you what does the joke
21:59mean what is what impact does it have so i'm telling you we we are the judges of a generation
22:07which has not dealt with this uh social media exposure we are in a learning curve the younger
22:12generation the gen z or the next generation have grown with this so their thinking processes are different