A crack in the Collegium’s wall of secrecy

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 led by Chief Justice B.R. Gavai. Yet, behind this smooth facade lies a rare crack: Justice B.V. Nagarathna, the lone woman member of the Collegium, formally dissented against Justice Pancholi’s elevation. 

Her note remains confidential, but a report in the Hindustan Times, which first broke the story, suggested that 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 J.B. Pardiwala and 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. (See chart below). 

Second, he is in line to be the CJI for nearly 18 months after the retirement of Justice Joymalya Bagchi in 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Third, Justice Pancholi has superseded scores of more senior judges, including three women judges.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. The transfer, according to the news report, was notified by the Union nearly nine months after the Collegium’s recommendation. If his transfer was indeed ‘stigmatic’ (a term used by Justice S. Muralidhar to describe, in a pejorative sense, transfer recommendations by the Collegium in a recent interview), there is bound to be a question around how he was found eligible for elevation. 

Fifth, Justice Nagarathna’s dissent note reportedly reveals that she and Justice Vikram Nath had blocked Justice Pancholi’s elevation in May. This paved the way for another nominee from the Gujarat High Court— Justice N.V. Anjaria, who is senior to him, to be elevated to the Supreme Court. 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. What makes this one unusual is a formal record of it and the fact that it was made public. The Collegium has long operated behind a curtain, insulated from both scrutiny and accountability. However, a handful of episodes in the past reveal internal discord.

In 2016, Justice J. Chelameswar refused 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. Notably, Justice Chelameswar had penned a dissenting opinion in the Judgement which struck down the National Judicial Appointments Commission (NJAC) in 2015. 

In 2018, Justice Madan Lokur was 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. Later, after Justice Lokur’s retirement, the Collegium recommended Justices Dinesh Maheshwari and Sanjiv Khanna. In January 2019, Justice Lokur expressed his disappointment that the resolution to elevate Justices Nandrajog and Menon was not made available in the public domain., It was subsequently reported that the new Collegium, after Justice Lokur’s retirement, had reconsidered the names based on “fresh material”. 

Justice R.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 resulted in 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

Former Union Minister Arun Jaitley had once argued that the Collegium allows less worthy candidates to slip through. The reality is worse: it allows no one to know why and how. The opacity of the Collegium’s process is fertile ground for both political pressure and internal compromise. 

Jaitley, for instance, criticised the supersession of Justices A.P. Shah and A.K. Patnaik despite their seniority. He suggested that seniority is not a self-serving tool to be used at will. Justice Patnaik was eventually elevated to the Supreme Court. 

Justice S. Muralidhar’s non-elevation to the Supreme Court before his retirement as the Chief Justice of the Orissa High Court raised eyebrows. Commentators argued that the Collegium seemed to have overlooked both seniority and merit in this instance. For instance, after his retirement, in an article in the Indian Express, Justice Madan Lokur, with Fali Nariman and Sriram Panchu, questioned the Collegium’s failure to elevate him to the Supreme Court. 

More recently, Justice Lokur recalled that he had successfully resisted the Union’s repeated pressure to transfer Justice Muralidhar from the Delhi High Court because it was unhappy with one of his judgements. Soon after Justice Lokur’s retirement, Justice Muralidhar was transferred to the Punjab and Haryana High Court. 

What sets Justice Nagarathna apart from earlier dissenters is that she chose to formally record her dissent and sought to have it uploaded for transparency. The fact that it was not uploaded and was instead leaked to the media does not erase its significance. 

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. 

The Union seems to have moved with haste, brushing aside Justice Nagarathna’s dissent. The dissent is not just about a judge—it is about the Court’s credibility. If the principled objection of a Collegium judge remains inaccessible and shrouded in secrecy, it erodes the public’s faith in the Court’s processes. 

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.