Judicial Appointments, Dissent, and the Ethics of Transparency
Context
On 29 August, Justices Alok Aradhe and V. M. Pancholi were sworn in as judges of the Supreme Court following a swift recommendation by the five-member Collegium led by B. R. Gavai.
However, the appointments were accompanied by a formal dissent from B. V. Nagarathna, the sole woman member of the Collegium, opposing Justice Pancholi’s elevation. Though her note remained confidential, media reports revealed substantive concerns—bringing into focus the ethical foundations of judicial appointments, collegiality, and accountability.
This episode is not merely about one judge’s elevation; it exposes deeper ethical tensions within the Collegium system.
Core Ethical Concerns Raised by the Dissent
1. Regional Balance and Representational Justice: Justice Nagarathna reportedly objected to the over-representation of judges from Gujarat, which already had sitting judges in the Supreme Court.
Ethical issue:
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- Substantive equalityin institutional representation.
- Concentration of judicial power undermines the perception of fairness across High Courts.
This raises concerns of structural bias, even if unintended.
2. Future Power Concentration and Institutional Prudence: Justice Pancholi’s early elevation positions him for a long tenure as Chief Justice of India, potentially resulting in two CJIs from the same state within a short span.
Ethical issue:
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- Appointments today shapefuture institutional leadership.
- Ethics demandsforesight and restraint, not merely present legality.
3. Supersession of Senior and Women Judges: Justice Pancholi’s elevation reportedly involved supersession of several senior judges, including women Chief Justices and puisne judges.
Ethical issue:
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- Fairness vs discretionin appointments.
- Gender justice and representational ethics in higher judiciary.
Repeated supersession without disclosed reasons corrodes morale and legitimacy.
4. Transfers, Stigma, and Moral Consistency: Justice Nagarathna is said to have urged reconsideration of the circumstances surrounding Justice Pancholi’s transfer from Gujarat to Patna High Court in 2023—especially if the transfer was “stigmatic”, a term publicly used by S. Muralidhar.
Ethical issue:
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- Consistency of moral standards.
- A judge found unsuitable earlier must not be elevated laterwithout transparent reasoning.
Opacity here invites suspicion of institutional convenience.
5. Opacity, Changed Opinions, and Collective Responsibility: The dissent note reportedly reveals that Justice Pancholi’s elevation was blocked earlier, and another judge was elevated instead. The absence of reasons for the later change of opinion raises questions.
Ethical issue:
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- Reason-giving as a moral duty.
- Collective bodies owe explanations when reversing positions.
Legal and Constitutional Framework
Collegium System
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- Evolved through theFirst, Second and Third Judges Cases.
- TheThird Judges Case (1998) emphasised consensus, not majoritarianism.
- A single dissent is sufficient to block reconsideration after return by the Union, highlighting themoral weight of dissent.
Ethical Codes
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- Restatement of Values of Judicial Life (1997): integrity, independence, and public confidence.
- Judicial power is atrust, not a privilege.
Ethical Philosophy Applied
Virtue Ethics: Judges must embody integrity, courage, and impartiality. Justice Nagarathna’s written dissent reflects moral courage, even at the cost of collegial comfort.
Public Trust Doctrine: The judiciary holds its authority in trust for the people. Trust collapses when decisions are inscrutable.
Relevant Judicial Experience and Parallels
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- Justice Chelameswar (2016) demanded recorded reasons and transparency in Collegium functioning.
- JusticeMadan Lokur later expressed regret over undisclosed reversals in Collegium recommendations.
- Non-elevation of JusticeAkil Kureshi and Justice Muralidhar raised serious ethical questions about seniority, merit, and executive pressure.
These instances point to a systemic opacity problem, not isolated errors.
Why This Dissent Matters Ethically
Justice Nagarathna’s dissent is significant because:
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- It wasformal, written, and contemporaneous, not post-retirement.
- It challenged the Collegiumfrom within, invoking principles rather than personalities.
- It soughtpublic disclosure, reinforcing accountability.
The failure to upload the dissent—followed by its leak—exposes a paradox:
The judiciary demands transparency from others while exempting itself.
Ethical Dilemma:
How does the judiciary preserve independence from the executive without insulating itself from public accountability?
This is the central moral tension of the Collegium system.
Way Forward
1. Institutional Transparency: Publish reasoned summaries of appointments and dissents (without compromising individual dignity).
2. Structured Criteria: Clear parameters on seniority, diversity, regional balance, and integrity.
3. Respect for Dissent: Collegiality must coexist with ethical disagreement, not suppress it.
4. Accountability Without Politicisation: Judicial accountability mechanisms must strengthen, not weaken, independence.
“Justice must not only be done, but must also be seen to be done.”
Conclusion
Justice Nagarathna’s dissent is a reminder that legitimacy in constitutional institutions flows as much from process as from outcome. The Collegium system was created to prevent executive dominance, not to replace it with judicial opacity. If dissent is silenced rather than explained, the judiciary risks eroding the very moral authority it seeks to protect.
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