How are the judges of India’s highest courts chosen? For decades, the answer has been the Supreme Court Collegium — a closed-door forum where the senior-most judges deliberate and recommend names to the executive branch. However, recent remarks by a retired Supreme Court judge have triggered a serious debate about where judicial independence ends and executive influence begins.
Former Supreme Court judge Justice Sanjay Kishan Kaul has revealed that former Chief Justice of India (CJI) D.Y. Chandrachud followed a practice of discussing proposed names for judgeship with the Union Government before the Collegium formally met to debate them. Justice Kaul characterized this practice as seeking the government’s “pre-approval,” warning that it sends the wrong signal about the judiciary’s autonomy.
The Revelation: What Justice Kaul Said
In an interview with journalist Karan Thapar for The Wire, based on his forthcoming memoir titled Without Fear Or Favour, Justice Kaul shared details about how judicial selection operated behind the scenes during his tenure on the Collegium.
Justice Kaul recalled a specific incident where the Collegium had reached a consensus on five names. At the last minute, CJI Chandrachud wanted to include a sixth name. The other Collegium members, including Justice Kaul, were not willing to accept this additional recommendation.
According to Justice Kaul, the former CJI took him aside during the meeting and asked whether he should make a phone call to the central government to ascertain its view on the matter. Justice Kaul advised against taking such a step while internal Collegium deliberations were actively underway. Justice Kaul noted that the former CJI may have already obtained informal approval from the government for the list, including the contentious sixth name.
The Distinction Between Consultation and Pre-Approval
The appointment of judges is supposed to involve communication between the judiciary and the executive. However, Justice Kaul drew a sharp legal distinction between constitutional consultation and informal “pre-approval.”
Under the established Memorandum of Procedure (MoP), the Supreme Court Collegium must first reach an internal agreement on candidates. Once the Collegium finalizes and signs its resolution, the list is formally sent to the Ministry of Law and Justice. The executive then conducts background checks through the Intelligence Bureau (IB) and either clears the names or returns them with specific objections.
Justice Kaul noted that seeking an informal nod from the government before the judges have sat down to deliberate compromises the entire framework:
- Premature Executive Veto: If candidates are vetted informally with the executive beforehand, names can be filtered out without any official record or collective Collegium scrutiny.
- Weakening Future CJIs: Justice Kaul explained that a Chief Justice with a long tenure who concedes this space leaves behind a weakened office. Successors with tenures of only a few months may find it impossible to resist the expectation that the government must be consulted informally before names are even proposed.
- Administrative Deference: While acknowledging former CJI Chandrachud’s intellectual capability on the judicial bench, Justice Kaul remarked that he was “too deferential” to the government on administrative and appointment matters.
What The Law Says: The Collegium and Separation of Powers
To understand why this issue is significant, one must examine the constitutional foundation of judicial appointments in India.
Under Article 124(2) of the Constitution of India, the President appoints judges to the Supreme Court after “consultation” with such judges of the Supreme Court and High Courts as deemed necessary. Similarly, Article 217 governs appointments to the High Courts.
The meaning of the word “consultation” was contested for decades across three landmark Supreme Court rulings known as the Three Judges Cases (1981, 1993, and 1998):
- First Judges Case (1981): The Supreme Court held that “consultation” did not mean concurrence. The executive had the final word.
- Second Judges Case (1993): The Court reversed its earlier stand, ruling that “consultation” actually meant concurrence. The opinion of the Chief Justice of India carried primary weight, creating the Collegium system.
- Third Judges Case (1998): A presidential reference clarified that the CJI cannot act alone; recommendations must represent the collective opinion of the CJI and the four senior-most judges of the Supreme Court.
The entire rationale for judicial primacy in appointments rests on the doctrine of Separation of Powers, recognized as part of the Basic Structure of the Constitution in Kesavananda Bharati (1973). Article 50 of the Directive Principles of State Policy also directs the State to take steps to separate the judiciary from the executive in public services.
The Risk to Institutional Independence
In 2015, the Supreme Court struck down the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act. The Court held that giving the Law Minister and civil society members a formal seat on the appointment commission would compromise judicial independence.
However, critics have pointed out that informal “pre-approvals” create the very executive entanglement that the Collegium system was designed to prevent. When informal screening takes place before official discussions, the process risks losing transparency, accountability, and collective deliberation among the senior judges.
Justice Kaul clarified that he does not oppose communication between the judiciary and the executive. Rather, the problem lies in the timing and the manner of those talks. If the government’s opinion is sought prior to the Collegium forming its own independent view, the constitutional balance is tilted in favor of the executive branch.
Why This Matters For You
Judicial appointments may seem like high-level procedural politics, but they directly affect ordinary citizens. The judiciary is the ultimate protector of fundamental rights under the Constitution. Citizens frequently challenge government policies, police actions, and legislative enactments before the courts.
If the executive holds hidden veto power or informal leverage over who becomes a judge, the independence of the bench can be undermined. A judiciary that is viewed as overly deferential to the government risks eroding public trust in its ability to deliver impartial justice without fear or favor.
The Key Takeaway
Justice Kaul’s revelations highlight the delicate tightrope of judicial independence in India, showing that constitutional safeguards rely not just on written rules, but on how individual judges manage institutional boundaries in practice.
Story reported by Supreme Court – High Court – Legal Breaking News | Live Law India. This article is BareLaw’s independent explanation and analysis.
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