What the Justice Pancholi elevation reveals about the Supreme Court

The elevation of Justice Vipul M. Pancholi to the Supreme Court represents an institutional collapse. The development is of a piece with an argument scholars Surbhi Karwa and Rehan Abeyratne presented earlier this year: that successive CJIs in the period between 2017 and 2022 misused their discretion to “accelerate” the executive’s agenda.      

This appointment violates established norms of seniority and regional representation while bypassing qualified senior women judges. It raises fundamental questions about executive influence over judicial selection. Among all the judges who have ever been elevated to the Supreme Court, Justice Pancholi’s tenure as a High Court judge has been the shortest. Justice Pancholi is scheduled to be Chief Justice of India for a year-and-a-half, starting October 2031. 

Unwritten conventions 

Article 124 establishes basic eligibility criteria for the appointment of Supreme Court judges. It requires candidates to have served as High Court judges for at least five years, or as advocates for ten years, or to be distinguished jurists. 

These formal requirements constitute a bare minimum framework in what has become the cornerstone of the struggle between the executive and the judiciary. In Supreme Court Advocates-on-Record Association v Union of India (2015), the Supreme Court had struck down the law creating the National Judicial Appointments Commission (NJAC), a six-member selection committee comprising three Supreme Court judges, the Union Law Minister and two eminent persons. 

Judicial appointments operate through constitutional conventions—unwritten rules that acquire the force of law through consistent practice and institutional acceptance. George H. Gadbois Jr.’s seminal research on the first 93 judges of the Supreme Court of India revealed how political dynamics and informal criteria shaped the Court’s formative years, establishing patterns that influenced appointments for decades.

Abhinav Chandrachud’s empirical work, The Informal Constitution, posited three informal eligibility criteria for Supreme Court selections: judges must be at least 55 years of age, they must be senior High Court judges or Chief Justices, and they must reflect India’s geographic and demographic diversity.

Post the NJAC verdict, Collegium transparency has been erratic. Resolutions recommending the elevation and transfer of judges follow no set format. A brief period of transparency has been followed by a regression into opacity. An empirical study published in May 2021 found resolutions published between 2017 and 2019 to be perfunctory and vague—these eventually devolved into mere laundry lists with the names of nominated judges. 

However, during the period between late 2022 and mid-2025, under Chief Justices D.Y. Chandrachud and Sanjiv Khanna, the published resolutions were more detailed, explaining selection parameters, referencing Intelligence Bureau reports and recording the Government’s suspect reasons for rejecting names, creating a new expectation of accountability.

Questionable supercession 

Yet, the Collegium seems to have reverted to the old ways in Justice B.R. Gavai’s tenure as CJI. The recent statement recommending the elevation of three judges, including Justice Pancholi, is terse and unreasoned. It offers no justification for its departure from the practice developed by the two preceding CJIs, raising concerns of a retreat into opacity. 

Justice Pancholi was 57th in the all-India seniority list at the time of his elevation. The scale of the supercession demands a compelling justification, as acknowledged by the verdict of the Court in the Third Judges case, which crystallised the Collegium system. 

Further, Justice Pancholi’s tenure of about eleven years as a High Court judge falls below the norm. An analysis by this publication in 2021 revealed that sitting Supreme Court judges had served in the High Court for an average of almost 15 years before elevation, with CJIs having even more years of High Court experience under their belt. 

Justice Pancholi’s elevation also distorts the federal balance, with the Gujarat High Court being represented by three judges in the top court. This over-representation occurs even as many High Courts have no representation, undermining the federal convention of accommodating diverse regional perspectives to inform constitutional interpretation at the national level.

Most egregiously, Justice Pancholi’s appointment perpetuates the judiciary’s appalling record on gender diversity. Justice B.V. Nagarathna remains the sole woman on the Bench despite three senior women judges being available for selection. Since August 2021’s historic elevation of three women judges, no woman has been appointed to the Supreme Court. 

Justice Nagarathna’s dissent 

On 26 August, the Hindustan Times broke the story that Justice Nagarathna had recorded a detailed dissent against the recommendation of Justice Pancholi. The Collegium has traditionally operated on a principle of consensus, presenting a monolithic front to the public and the executive. A formal dissent pierces this veil of unanimity. 

Justice Nagarathna’s dissent reportedly stated that Justice Pancholi’s appointment would be “counter-productive” to justice administration and harm Collegium credibility, noting that several meritorious and more senior judges had been bypassed. By articulating specific, verifiable criteria—seniority, a past administrative action, regional representation metrics—the dissent provided a factual basis for critique. 

The most troubling aspect centred on Justice Pancholi’s transfer history. He was transferred from the Gujarat High Court to Patna High Court in July 2023. Judicial transfers under Article 222 occur for “better administration of justice” and typically reflect serious institutional concerns about a judge’s effectiveness or conduct. Ignoring a prior, non-routine transfer could be read as an act of institutional amnesia. Elevating a judge previously transferred implies that either the transfer was unjustified or that legitimate concerns for the transfer are now being ignored. 

Justice Nagarathna’s dissent in the Collegium represents a watershed moment in Indian judicial history, echoing Justice H.R. Khanna’s celebrated opposition in ADM Jabalpur during the Emergency. When a majority of the Supreme Court surrendered fundamental rights to authoritarian power in 1976, Justice Khanna was the lone dissenter. He went ahead with his objection, knowing that it could count against him and cost him the Chief Justiceship. 

Justice Nagarathna’s position amplifies the dissent’s moral authority because, at least from the outside, it seems like she has nothing to gain but something to lose. Destined for a mere 36-day tenure as Chief Justice in 2027, she had no personal stake in challenging Justice Pancholi’s appointment. 

As per the Memorandum of Procedure, she will have to recommend the next Chief Justice a mere week after assuming office. There appears to be a convention of the outgoing CJI not pushing appointments after naming their successor. In October 2022, the Collegium led by CJI U.U. Lalit put out a document suggesting that Justice D.Y. Chandrachud’s non-appearance at a Collegium meeting was a tactic to stall recommendations until he took office shortly. CJI Lalit “discharged” the meeting, despite there being the “unfinished work” of filling vacancies, since he had already received the customary missive from the Law Minister to nominate his successor. 

Within this context, it’s not unreasonable for observers to read Justice Nagarathna’s dissent as motivated by pure institutional preservation. It is made more poignant by her status as the only woman on the Bench. 

The executive’s alacrity

The executive’s two-day clearance of this recommendation raises questions about a Union Government-Collegium alignment that strikes at the core of judicial independence. The unprecedented speed, contrasted with the typically extended deliberation and negotiations, suggests either improper prior consultation or a shared interest in the candidate. A pattern of swift approval for controversial appointments and delayed approval for routine ones should cause alarm bells to ring. 

Supersessions have taken place in the Collegium era, but they have often been justified. Justice S. Abdul Nazeer’s 2017 elevation, for instance, was for minority representation while Justice K.M. Joseph’s 2018 appointment, even as he was 42nd on the all-India seniority list, followed a standoff between the Collegium and the government. The Collegium has also previously justified deviating from the seniority norm by officially recording that certain judges were “more deserving and suitable”. 

Reportedly, Justice Nagarathna also recorded her opinion that Justice Pancholi becoming the CJI would not be in the institution’s best interests. Indeed, a future CJI assuming office under a cloud of controversy and an unresolved past undermines the Supreme Court’s moral authority and public trust. 

Restoring faith 

Reforms are imperative to enhance transparency and accountability in judicial appointments. The Memorandum of Procedure should be amended to mandate detailed public resolutions for all appointments and compelling justifications whenever seniority is superseded. At the very least, some minimum requirements for Collegium resolutions must be codified by the Court, led by the CJI. Information about the factors considered for elevation and any dissent, including reasons for it, must necessarily be included. 

As under CJIs Chandrachud and Khanna, the Court must apply pressure on the executive to close appointments and transfers within a timeline. This is to address situations like the one involving Senior Advocate Saurabh Kirpal, where the executive has exercised a pocket veto ever since his name first came up for consideration eight years ago. 

More broadly, restoring the Supreme Court’s authority requires a national dialogue on appointments. This includes seriously reviving the conversation around the NJAC—previously struck down in an act of institutional self-preservation—in a more transparent and consultative form. 

As Justice J. Chelameshwar noted in his dissent in the NJAC verdict: 

“We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?” 

The republic’s health depends on building a framework that honours judicial independence and democratic accountability. There are enough instances to suggest that the Collegium is working not through consensus but majoritarianism. The transition from detailed resolutions to bald, vague statements is regressive and must be addressed at the earliest. Additionally, a larger conversation needs to be entered into—in earnest—about the wisdom of the Collegium system. 

Surendra Kumar and Rohan Naik are Assistant Professors of Law at Ramaiah College of Law, Bengaluru.