Judge’s dissent signals need for transparency

Justice B V Nagarathna has expressed concern over Justice Vipul Pancholi’s nomination to the Supreme Court

Justice B V Nagarathna’s reported dissent against the Supreme Court collegium’s decision to nominate Patna High Court Chief Justice Vipul Pancholi to the apex court is another reminder of the need for judicial appointments to maintain the highest level of transparency and credibility. The collegium went ahead with its decision in spite of the dissent by Justice Nagarathna, and the government confirmed the recommendation within two days. The collegium has four other members—Chief Justice of India B R Gavai and Justices Surya Kant, Vikram Nath and J K Maheshwari. Justice Nagarathna noted that Justice Pancholi’s appointment would not only be “counter-productive” to the administration of justice but would also affect the credibility of the collegium system. She flagged “serious and grave reasons” for her concern, raising questions about the appointment of Justice Pancholi and the whole system of appointment of judges to the higher judiciary. 

Justice Nagarathna’s concerns were reportedly about recommending one more judge from the Gujarat High Court, less than three months after the elevation of Justice N V Anjaria, who was also from the Gujarat High Court, to the top court. When Justice Pancholi’s candidature was considered in May, two judges in the collegium are believed to have expressed concerns over his lack of seniority. The collegium then recommended Justice Anjaria to the top court, and Justice Pancholi was appointed Chief Justice of the Patna High Court. But when the recommendation re-emerged, Justice Nagarathna reportedly pointed out that it would lead to bypassing the seniority of many senior judges in the High Courts. She is also said to have pointed out that Justice Pancholi’s transfer to the Patna High Court in 2023 was not considered routine. 

It is unfortunate that so many questions have been raised about the elevation of a judge to the highest court. They are particularly important because Justice Pancholi is in line to become the Chief Justice of India. The Supreme Court should reflect the country’s diversity. There are two judges from the Gujarat High Court in the apex court and Justice Pancholi will be the third. Many of the 25 High Courts in the country have no representation in the Supreme Court. There is only one woman judge. Merit, diversity and representation are the most important factors in the appointment of higher court judges. There are also concerns about appointment of judges’ relatives and associates as judges and lack of transparency in the collegium’s proceedings. The recommendations of the collegium and the dissenting note should be made public in the interest of transparency. The people have the right to know how the decision was taken. The questions need to be answered and the fears allayed.