Judiciary not meant to be yes authority to govt, says former SC judge Sanjay Kishan Kaul

Justice Kaul has recently been appointed by Bahrain King Hamad bin Isa Al Khalifa as part of the nine-member judicial panel of the Bahrain International Commercial Court.

Former Supreme Court judge Justice Sanjay Kishan Kaul said there must be a distance between the Government and the judge. According to him, a judge, to some extent, must be a little secluded.

Kaul has recently been appointed by Bahrain King Hamad bin Isa Al Khalifa as part of the nine-member judicial panel of the Bahrain International Commercial Court.

In an interview with Indian Express, Kaul said the judiciary gets its credence from how people perceive this institution.

“The peculiarity is that whoever comes to power, whether at the state level or the Central level, sometimes perceives the judiciary as an antagonistic force… The fact is that it is a check-and-balance force. I have said this before: the judiciary is not meant to fight the Opposition’s battle with the Government, nor is it meant to be a “yes” authority to the Government,” Kaul told IE.

He said the work of the judiciary is that the check and balance must be maintained. “Checks and balances, sometimes, are to restrict the Government from embarking on certain paths,” he said.

Speaking about his reputation of being a judge who complimented former Chief Justice of India D Y Chandrachud, Kaul said in the Supreme Court they were together from 2017 to 2023. “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,” he told IE.

Kaul also admitted he “couldn’t be happy” with the matter of the Judges Appointment case being taken away from him. “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,” said Kaul.

He also explained why while writing the verdict of Article 370 he wrote a separate though concurring judgment with an epilogue. “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,” said Kaul who is also a Kashmiri.

Regarding restoring the provisions of Article 370, Kaul told IE that he didn’t know whether this was a reversible situation or not.

Kaul also called Prime Minister Narendra Modi attending Ganesh Puja at former CJI Chandrachud’s house “a little unusual”. “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,” he said.

According to Kaul, the judiciary as an institution must also find a solution to the problem of large backlogs and arrears. “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,” Kaul told IE.