A CRACK IN THE COLLEGIUM’S WALL OF SECRECY

THE CONTEXT: Justice Nagarathna’s reported dissent against a recent recommendation highlights the lack of transparency around Collegium deliberations.

On 29 August, Justices Alok Aradhe and V.M. Pancholi took oath as judges of the Supreme Court. Their appointments, cleared speedily by the Union, were recommended on 25 August by the five-member Collegium. Justice B.V. Nagarathna, the lone woman member of the Collegium, formally dissented against Justice Pancholi’s elevation. She flagged five issues:

• • First, his elevation tilts the regional balance as he would be a third judge with Gujarat as the parent High Court, apart from Justices B. Pardiwalaand N.V. Anjaria. Indeed, when compared to their sanctioned strength, the Gujarat and Madhya Pradesh High Courts seem to be overrepresented in the Supreme Court. Allahabad, Bombay and Punjab & Haryana—the only other High Courts with three judges—have a much higher sanctioned strength.
  • Second, he is in line to be the CJI for nearly 18 months after the retirement of Justice Joymalya Bagchiin October 2031. This long tenure occurs after a gap of about 14 months of Justice Pardiwala’s more than two-year tenure (from 3 May 2028 to 11 August 2030). Therefore, there will be two CJIs from the same state within two years merely because of their early appointment to the Supreme Court.
  • Third, Justice Pancholi has superseded scores of more senior judges, including three women judges. They are Chief Justice of the Gujarat High Court, Sunita Agarwal and Justices Revati Prashant Mohite Dere and Lisa Gill from the Bombay and Punjab and Haryana High Courts, respectively.
  • Fourth, Justice Nagarathna is also said to have urged her colleagues to revisit the confidential reasons behind Justice Pancholi’s transfer from Gujarat to Patna High Court in 2023.
  • Fifth, Justice Nagarathna’s dissent note reportedly reveals that she and Justice Vikram Nath had blocked Justice Pancholi’s elevation in May. The reasons for Justice Nath’s change of opinion this time around remain a mystery.

The larger picture: Dissents in the Collegium are not new.

• • In 2016, Justice  Chelameswarrefused to attend Collegium meetings, demanding written records of discussions and publication of reasons. This was the first time that a member of the Collegium challenged its functioning, though not against an individual candidate.
  • In 2018, Justice Madan Lokurwas part of the Collegium, which resolved to recommend Justices Pradeep Nandrajog and Rajendra Menon to the Supreme Court. The resolution, however, was never uploaded to the Supreme Court website.
  • Justice F. Nariman, during his tenure as a Collegium member, had argued against elevating judges who were junior to Justice Akil Kureshi ahead of him. Reportedly, this had resultedin a deadlock, with no appointments at the Supreme Court. After a long delay, Justice Kureshi was made Chief Justice of the Tripura High Court and retired without being elevated.

These episodes revealed differences of opinion within the Collegium. Information about them came into the public domain through leaks or recollections by retired judges. Justice Nagarathna’s dissent is, therefore, the latest example in a series of events that speak to the Court’s lack of collective responsibility to offer reasoned recommendations.

Why this dissent matters: Unlike previous judges, who only spoke of their disagreements with the Collegium’s procedure after retirement, Justice Nagarathna’s dissent in writing, while still in office, displays a willingness to risk losing collegiality within the Court to stand by time-tested principles.

The spirit of consensus in ‘Third Judges’: The Third Judges case of 1998 had pitched for consensus, making clear that a recommendation cannot move forward if two members disagree. It also laid down that a single dissent is enough to block a reiteration after the Union returns a name for reconsideration. These stipulations seem to have been followed in Justice Pancholi’s case (since there was only a single dissent and not in an instance of reconsideration), but the spirit of consensus encouraged by the Third Judges case seems to have been flouted.

Representation of HCs in the SC

Table with 3 columns and 25 rows. Sorted ascending by column “High Court” (column headers with buttons are sortable)

The Collegium was designed to be collegial, not majoritarian. It was meant to insulate appointments from executive interference and not to create a barrier between the judges and the public. If the system cannot accommodate dissent transparently, it will only feed the suspicion that judicial appointments are decided by convenience, not by principle.

The Collegium system is a product of the judiciary’s long-standing struggle against executive overreach. For years, the judiciary has defended the system as the lesser evil compared to political appointments. That defence may be wearing thin. Justice Nagarathna’s dissent is a reminder that legitimacy lies not just in outcomes but also in transparency.