‘There has to be a distance between the Government and the judge’: Justice Sanjay Kishan Kaul

How do you see the current debate over the relationship between members of the judiciary and the Government? Some raise concern over a perceived proximity…

On proximity with the Government, I would say that a judge, to some extent, has to be a little secluded. That is one part of it. And there has to be a distance between the Government and the judge.

I recollect the words of Justice Y K Sabharwal (former CJI) who told me once that if there is some underlying tension between the Government and the judiciary, it is good for the system. If things are very hunky dory, there is a problem.

Justice Sanjay Kishan Kaul retired on December 25, 2023. (Express photo by Praveen Khanna/File)

In the period when you were No. 2 after Chief Justice of India D Y Chandrachud, you acquired the reputation of being a judge who complimented him.

In the Supreme Court, Justice Chandrachud and I were together from 2017 to 2023, so a little under seven years. The crucial period, yes, were the 14 months I spent with him as his first judge. To me, it was my duty to advise him. And it was for him to take the advice.

While handling administrative work in a High Court like Chennai, there was press reporting at times saying that people in the Bar say that (I am) amenable but very obstinate.

I said I accept that obstinacy, it is necessary to work the systems out. I don’t think I was a rebel to a cause, but yes, I felt (that if) a certain administrative stand had to be taken vis-a-vis the Government… we must take it firmly. My own belief and experience is that if you take that stand firmly and you explain the rationale of that in the interactions that the executive and the judiciary have, they do back off in many cases or in most cases.

Any instance you disagreed with CJI Chandrachud?

Couple of them, yes… towards the end. There may have been some difference of perception on appointments to the Supreme Court. Ultimately, we (worked) it out.

I don’t think I had a major difference of perception, but yes, there could be a perception, when, for example, the matter relating to delay in judicial appointments was pulled out from my court (in December 2023). At that time, I just said, ‘There are some things that should be left unsaid’, because I did not think that should happen.

Justice Sanjay Kishan Kaul at his Akbar Road residence in New Delhi with his dog Simba. (Express photo by Praveen Khanna/File)

You were clear that you should have heard the matter?

Yes. It was to be listed. There was no reason to pull out the matter from me. And it was my last week. And it somehow never got put up after that also.

Did you take up the matter of the Judges Appointment case being taken away from you with the Chief Justice?

Well, I couldn’t be happy with it. I wasn’t happy with it. But I let it be at that. And I did indicate to him (CJI) that it shouldn’t have happened. I had this liberty with him. That if I didn’t agree with something, I would go and tell him. And he knew and valued the fact that I will always speak my mind.

The Article 370 verdict was a milestone… and you wrote a separate, though concurring judgment with an epilogue. Was there any difference of perception in the five-judge bench?

When we were writing the verdict in Article 370, it could have been written by (CJI); it could have been written by me, we were all entitled, but he was writing it. But there was a nuance I wanted to build myself. Maybe sometimes there are things which are closer to the heart so I wrote that last part…

Being a Kashmiri, did you feel you needed to nuance a verdict that will be part of history?

I was of the view that we must walk forward. So I wanted to write on the issue of trying have a model such as the Truth and Reconciliation Commission (which has been adopted in South Africa) which I wrote… If you see the last portion of mine, it is an epilogue written on this aspect because I feel we must acknowledge what has happened, forget the criminality of it. I had suggested to the Government to accept it and Justice Sanjiv Khanna, in a separate short judgment, agreed on this point of the Article 370 issue with me.

Justice Sanjay Kishan Kaul’s legal career began in 1982 after graduating from Campus Law Centre, Delhi University. (Express photo by Praveen Khanna/File)

The idea was that people must know that there was something wrong which happened. Too much time has passed. Wrong may have happened in 1987-1990; wrong may have occurred when we were trying to defend against inimical forces because the Army is not a law and order force. It is unleashed when you have a war at hand. So there may have been suffering, but let us at least acknowledge it. What has perturbed me always is that, at times, the migration of almost 5 lakh people of a minority from a state used to be brushed aside… No. The ground reality of the situation is that these people had to leave their home and hearth. Let’s accept that, at least. And post-retirement, what I have seen of the community is that they feel that nobody is going to suddenly get up and go back… But if you want to encourage the re-assimilation and if you want that the people who have gone out should visit and periodically come to Kashmir, I don’t believe the solution can only be in creating ghettos.

The newly elected National Conference government in J&K has announced they want to restore the provisions of Article 370 and challenged the Supreme Court judgment. What are your views?

I don’t know whether legally what is permissible now, whether this is a reversible situation or not. We were testing on a Constitutionality. We felt that it was a temporary provision. I still believe that… (that’s) how I read the Constitution. The larger debate was whether the process followed by the Government was correct or not. We thought this was a possible process and there are many eminent people who think otherwise.

See, the ruling Government dispensation was always known to propagate a particular political philosophy. And certainly, Article 370 formed part of their political philosophy. They have implemented their political philosophy. Other Governments have come to power and implemented their political philosophy. Mrs Gandhi came with a mandate in 1971 for a more Left and socially oriented phase; you had bank nationalisation and so on. She implemented her political philosophy. So I don’t think there is anything wrong with a Government elected by the people in implementing their political philosophy subject to the check and balance of compliance with the Constitutional provisions.

Back to the judiciary: the speech at a political event by Allahabad High Court Justice S K Yadav. Does that worry you?

No judge is meant to deal with political issues outside court and make statements. I think there have been aberrations earlier and I am sure the collegium will take action to deal with the issue. After all, we have 600-700 judges and some of them may go wrong. The worrisome aspect is that there should not be more incidents like this… for (this) the judiciary has to be firm in how it deals with certain issues, and this is not only vis-à-vis this incident. But a judge should not be looking to progress in his career by looking to the Government. That sometimes creates problems.

Would you call it an aberration?

I will call it an aberration and maybe the aberrations are a little more today than earlier, say five years ago. These aberrations may be some judge saying something outside the fora or sometimes even saying in your judgments things, which the Supreme Court says, oh, you were not supposed to say this.

What is happening is that some sections of the court maybe try to curry favor — for what purpose I don’t know — because everybody knows that progression in path is possible with the Government. Now that is not something which is desirable.

And let me give you an example of why I would take a stand sometimes. We, in our wisdom, transfer judges from one court to another. It’s been a collective decision and the discussion goes beyond the collegium. Inputs used to be taken from judges of that court or Chief Justices of that court. Now, once you transfer, then the transfer is not implemented. It has happened at least with five judges starting from my time and it still remains where it is. What is the signal we get from this? That someone has been able to stop this process of transfer of a judge by approaching the Government. I cannot think of any other reason why the transfer will not take place because for a judicial appointment already made, the transfer is governed by what the collegium says. And the collegium does not know why the transfer is not taking place. So that creates a thinking process sometimes that well, these people have maintained their positions where they are by interaction with the Government. Now that is not good. So I always feel that either don’t transfer a judge, and if you do transfer him, it must be implemented.

Your views on the Prime Minister-CJI Ganpati Puja at the CJI’s house.

Let us understand this: marriages and functions, politicians do come. Sometimes because of the office they hold, they are invited. But this was a little unusual, I would say. The visibility it got created a lot of problems. It also occurred at a time when there were already controversies which were going on, so it got played up much more than normally it would have been played up. Then there were different views on this. One view was that nothing was hidden, which was correct because it was there. But what happened was that a private affair became a public affair. And that is what created a huge controversy. It also got pitched in because of the timing, the close proximity to the Chief Justice demitting office. I think many things went wrong in the whole episode which caused some embarrassment to the Chief Justice.

So it was avoidable?

I would say it was avoidable. But what happens is that on personal things people sometimes take judgment calls. You don’t anticipate how it will blow up. There are other people who will say that no, no you should have known the kind of reaction it will have. We are all human beings, human beings can err in anticipating the effect of what they are doing.

What’s the main challenge for the judiciary now?

We, as an institution, have to find a solution to the problem of large backlog and arrears. We cannot brush it aside and say that the judiciary will decide cases in 20 years and expect people of this generation and in this age of technology to accept it.

I had made a suggestion to this Government – it never got acted upon – that there are so many criminal cases pending. Why can’t you take a one-time decision that anyone who has been charged with a 7-10-year term and has already undergone one-third and is not a repeat offender… why not take a bond of good behaviour and release him?

Plea bargaining has not worked in India and if plea bargaining has not worked and every case has to go to trial, we can never finish the job. This suggestion was given by me as part of a judicial order in the Supreme Court… I repeated it twice over and I said that the Government should explore… but nothing came out of it, they said they were looking into it… I believe all this needs drastic action.