Former Supreme Court judge Justice Sanjay Kishan Kaul has offered candid reflections on the persistent friction between the higher judiciary and the executive, recalling key episodes during his tenure where the Supreme Court Collegium grappled with government delays in processing judicial appointments.

Justice Kaul, who retired in December 2023 after a distinguished career on the bench, previously headed proceedings that actively questioned the Union government over protracted delays in clearing names recommended by the Collegium for High Courts and the apex court.

Navigating Institutional Friction

During his time on the bench, Justice Kaul frequently addressed the institutional balance necessary for a robust democracy. Reflecting on the process of appointing judges, the jurist acknowledged that disagreements between the executive and the judiciary are neither novel nor entirely avoidable, but stressed that established constitutional conventions must guide institutional dialogue.

His remarks revisit the delicate phase when the Supreme Court bench led by him closely scrutinized the government's practice of segregating and withholding recommended names despite reiterations by the Collegium. Under the existing Memorandum of Procedure (MoP), once a recommendation is reiterated unanimously by the Collegium, the government is constitutionally bound to notify the appointment.

"There comes a point where one has to draw a line and acknowledge the boundaries of judicial intervention," Justice Kaul noted while discussing the closure of hearings on judicial appointments prior to his superannuation. He emphasized that prolonged institutional standoffs ultimately affect the administration of justice and litigants across the country.

The Core of the Collegium Dispute

At the center of the dispute between the judiciary and the central government has been the mechanism of judicial appointments:

- Delays in Notification: The Supreme Court repeatedly flagged instances where files remained pending with the Union Ministry of Law and Justice for months, and in some cases years, without clear justification. - Selective Clearances: Concerns were consistently raised over the Centre selectively notifying judges from recommended batches, effectively disrupting seniority lists. - Search and Evaluation Committees: The executive has repeatedly argued for greater representation and a structured search committee, citing the need for transparency in how candidates are vetted.

Justice Kaul underscored that while scrutiny and background verification by intelligence agencies and the government are legitimate parts of the process, withholding reiterated names undermines the primacy of the Collegium established by landmark constitutional verdicts.

Impact on Court Vacancies and Litigation

Vacancies across India's 25 High Courts remain a critical bottleneck in the country's judicial infrastructure. With over four crore cases pending across various levels of the judiciary, delays in filling vacant benches exacerbate the burden on sitting judges.

Justice Kaul pointed out that talented senior advocates often hesitate to accept judicial elevation when the timeline for government clearance remains uncertain, warning that institutional hesitation could compromise the caliber of future benches.

The Path Ahead

Legal scholars and observers have long called for a revised Memorandum of Procedure that introduces strict timelines for both the judiciary to evaluate candidates and the executive to clear notifications. While differing perspectives on judicial accountability and appointment transparency persist, Justice Kaul's reflections highlight the imperative for mutual institutional respect to ensure the uninterrupted delivery of justice.