A dissent to safeguard the future

The dissent by Supreme Court judge, Justice B.V. Nagarathna, against a proposal to elevate Justice Vipul Manubhai Pancholi to the top court was an appeal to protect the future of the court and credibility of the Collegium system of judicial appointments.

Justice Nagarathna, in her note, urged Chief Justice of India (CJI) B.R. Gavai to keep in mind, as the head of the Supreme Court Collegium and pater familias of the judicial fraternity, that decisions taken in the present would have ramifications on the future administration of justice. Her dissent drew strength from the court’s own principle that judicial appointments must be free of fear of other power centres. Executive interference in judicial appointments, as Justice Madan B. Lokur wrote in the National Judicial Appointments Commission judgment, would cripple justice administration, for the government was “unashamedly the biggest litigant in the country”.

The dissent indicated the bar, while recommending judges who could become Chief Justices of India, must be set “really high” as they become protectors of the independence of the judiciary in posterity. Justice Pancholi, who was sworn in as a Supreme Court judge on August 29, is in line to be CJI in 2031.

Lone voice

The dissent from the lone woman Supreme Court judge is multi-faceted. It did not merely focus on the point that there were other women High Court judges senior to Justice Pancholi. Her reservations touched upon the criteria the Collegium had to consider while assessing a candidate for elevation. A Collegium resolution of July 11, 2024 listed these as criteria for the judges under consideration — merit as demonstrated by the judgments authored by the judges and performance; integrity; the need to ensure diversity in terms of region, gender and community; and the need for inclusion of the marginalised and backward segments of the community.

The train of events leading to the 4:1 division in the Collegium harked back to May 25, 2025 when Chief Justice Gavai broached the subject of the candidacy of Justice Pancholi to the top court. Justice Nagarathna is said to have expressed her oral dissent. It appeared that Justice Vikram Nath, formerly a Gujarat High Court Chief Justice, too had objected to the proposal. Justice Anjaria, who was senior to Justice Pancholi in the Gujarat High Court, was recommended the next day. Justice Anjaria had fulfilled the criteria of both seniority and regional representation in May 2025. But the proposal to elevate Justice Pancholi, who had been Patna Chief Justice since July 21 this year, to the top court came up again in August. This time, Justice Nagarathna reportedly put in a written dissent requesting the CJI and her other Collegium colleagues to consider the “serious and grave concerns” that led the Collegium to transfer Justice Pancholi from Gujarat to Patna High Court in July 2023. Justice Nagarathna is noted to have said the decision to transfer was made after due deliberation following consultations with Justices M.R. Shah, Nath, J.B. Pardiwala and Aravind Kumar.

Justice Nagarathna requested the Collegium to call for and peruse the minutes of the meeting recommending the transfer in 2023. She asked why a lawyers’ delegation had met the then Chief Justice of India, Justice D.Y. Chandrachud (now retired), in the presence of Justice Shah, and pleaded for the transfer. Justice Nagarathna sought reasons that led Justice Nath to reprimand Justice Pancholi while the former was the Gujarat High Court Justice.

Counter-productive to justice

The Supreme Court judge, in her dissent, ostensibly noted that Justice Pardiwala’s (former Gujurat High Court judge) opinion was not sought for the proposal to elevate Justice Pancholi as Patna High Court Chief Justice. A section of a 41-page document posted online by the Supreme Court titled, ‘Appointment of High Court Judges’, has a section called the ‘The Role of the Supreme Court Collegium’ in which the first tenet is that “the Chief Justice of India seeks views of the judges of the Supreme Court, outside the Collegium, who are conversant with the affairs of the concerned High Court”.

She reportedly objected to the elevation of Justice Pancholi, who was ranked 57 in the all-India seniority, to the Supreme Court, citing that it would prove “counter-productive” to the administration of justice and risk the credibility of the Collegium. Justice Nagarathna, who is herself in line to be the first woman Chief Justice of India in 2027, raised doubts about whether Justice Pancholi’s prospective Chief Justiceship from October 3, 2031 to May 27, 2033 would be in the interest of the institution.

Justice Nagarathna also presumably asked whether there was a requirement for a third judge from the Gujarat High Court with Justice Pardiwala, who is in the running for Chief Justiceship, and Justice Anjaria already on the Supreme Court Bench. She raised the point that several High Courts were not represented or had inadequate representation in the top court. The High Courts without representation include Jammu and Kashmir, Orissa, Jharkhand, Sikkim, Meghalaya, Tripura and Uttarakhand. The dissent note is said to have argued that there were several meritorious judges senior to Justice Pancholi the Collegium could recommend for the top court.