We Must Know Why Justice Nagarathna Dissented In Collegium Against Justice Pancholi's Elevation : Justice Oka

At a book launch event in New Delhi, Justice Abhay Oka, former Judge of the Supreme Court, said that it is a matter of great concern that Justice BV Nagarathna's dissent on the elevation of Justice Vipul Pancholi to the Supreme Court was not made public.

“It is a question of great deal of concern...You are right when you say that one judge has dissented, we must know what is that dissent. You will be justified in criticising why the dissent is not in public”, he said, responding to a question by Senior Advocate Indira Jaising on how the Collegium decides who to the appoint.

The comment came during the launch of [In] Complete Justice? The Supreme Court at 75, edited by Senior Advocate S. Muralidhar and published by Juggernaut Books. The event featured a conversation between Justice Oka, Professor Gopal Guru, and Muralidhar, moderated by Manisha Pande. During the Q&A session, Jaising asked –

“Are we interested in dissent which will become the law of the land in 10 years or are we going to protest in real time? How does the collegium function in the secrecy that it does? Today we have the dissent of the sole woman judge in this country who said she disagreed with the decision of the majority of the Collegium appointing a junior judge who will be the future Chief Justice of India. I want to know what are the criteria for selecting future Chief Justices of India? In my opinion, they are ideological. A majoritarian Hindutva government want its own people in the judiciary and what have you judges done about it?”

While Justice Oka agreed that the dissent should be public, he highlighted that transparency in appointments must be balanced with privacy of the candidates.

Justice Oka said, “Collegium considers cases of 10, 15, 20 lawyers, Collegium will say he is not upto the mark, he has some doubtful reputation - are we not concerned about privacy of those who volunteered to give consent because if 10 cases are considered, 5 will not be recommended? And other five, if it's on public domain, they will have to go back and practice. So, issue of privacy also there...We have to balance it with privacy.”

Earlier today, the Centre notified the appointments of Justice Alok Aradhe, Chief Justice of the Bombay High Court, and Justice Vipul Pancholi, Chief Justice of the Patna High Court, as judges of the Supreme Court, two days after the Collegium recommended their elevation.

Reports indicate that Justice Nagarathna had dissented in the Collegium meeting on Justice Pancholi's elevation, citing his relatively low rank in All India Seniority and raising concerns about his transfer from the Gujarat High Court to the Patna High Court in 2023. It was also noted that Gujarat High Court already has two judges in the Supreme Court. The Collegium's official statement did not mention her dissent or provide reasons for the decision.

Justice Pancholi, following the rule of seniority, is in line to become Chief Justice of India from October 2031 to May 2033.

Senior Advocate Indira Jaising questioned why three senior women judges - Justice Sunita Agarwal (Chief Justice of Gujarat High Court), Justice Revati Mohite Dere (Bombay High Court), and Justice Lisa Gill (Punjab and Haryana High Court) - were not considered for elevation. She pointed out that the Supreme Court presently has only one woman judge, i.e., Justice Nagarathna.

Jaising also stated that Justice Pancholi's appointment would further increase the representation of judges from the Gujarat High Court, as Justices JB Pardiwala and NV Anjaria were also elevated from there.

In another post, Jaising highlighted that after the appointments of Justices Hima Kohli, BV Nagarathna, and Bela Trivedi in 2021, no other woman judge has been appointed, even though 28 appointments have been made to the Supreme Court under four Chief Justices.

Following reports of Justice Nagarathna's dissent, the Campaign for Judicial Accountability and Reforms (CJAR) issued a statement calling for the publication of her note of dissent and disclosure of the reasons for Justice Pancholi's transfer from Gujarat High Court to Patna High Court in 2023, which, according to reports, was not a routine transfer.

The event can be watched here.

Live updated from the event can be followed here :