A Shadow in the Court, Justice Nagarathna’s Dissent and the Unending Crisis of Transparency in India’s Collegium System

A Shadow in the Court, Justice Nagarathna’s Dissent and the Unending Crisis of Transparency in India’s Collegium System

The hallowed halls of the Supreme Court of India are no strangers to controversy, but the tremors from within its most sanctified inner sanctum—the Collegium—often send the most profound shocks through the nation’s judicial conscience. The recent elevation of Patna High Court Chief Justice Vipul M. Pancholi to the Supreme Court has done precisely that, unveiling a saga of dissent, unresolved questions, and a glaring deficit in the transparency that the institution itself has often preached. At the heart of this storm is a singular, powerful voice of dissent: that of Justice B.V. Nagarathna, whose lone stand against the appointment has ripped open the carefully stitched seams of the Collegium’s opaque decision-making process, forcing a nation to question the very integrity of the mechanism that appoints its most powerful judges.

This is not merely an internal administrative squabble; it is a critical juncture for Indian democracy. The episode, involving a 4-1 split decision within the five-member Collegium and the Centre’s unusually swift confirmation within 48 hours, strikes at the core of judicial independence, accountability, and the public’s right to know how those who wield immense power over their lives are chosen.

Deconstructing the Controversy: A Timeline of Intrigue

The narrative, as pieced together from reports, is complex and shrouded in deliberate ambiguity. The Supreme Court Collegium, headed by Chief Justice of India D.Y. Chandrachud and comprising Justices Sanjiv Khanna, B.R. Gavai, Surya Kant, and Sanjay Kumar, had been deliberating on elevations to fill vacancies in the top court. The name of Justice Vipul M. Pancholi, the Chief Justice of the Patna High Court, was part of these deliberations.

However, the proposal was far from smooth. Justice Nagarathna, the lone woman judge currently in the Supreme Court and a potential future Chief Justice of India, recorded a powerful and detailed dissent. She reportedly underlined that elevating Justice Pancholi would be “counter-productive to the administration of justice” and would risk putting the “credibility of the collegium system at stake.” These are not casual words from a sitting Supreme Court judge; they are a severe indictment, suggesting that the appointment itself could cause tangible harm to the institution.

The roots of this dissent lie in a previous controversy: Justice Pancholi’s transfer in July 2023 from the Gujarat High Court to the Patna High Court as Chief Justice. This transfer was itself mired in a prolonged standoff. The Collegium’s proposal for this transfer was reportedly pending with the Union Government for over nine months, an inordinate delay that often signifies serious reservations or behind-the-scenes negotiations from the executive. Justice Nagarathna’s dissent note allegedly flags “serious and grave reasons” related to this transfer that “cannot be ignored.” Furthermore, it reveals that a proposal for Justice Pancholi’s elevation to the SC was first opposed by her and had reservations from another judge (Justice Vikram Nath, as per the text) as early as May 2024. Despite this initial rejection, the proposal resurfaced and was pushed through three months later in August.

The Collegium, with a 4-1 majority, proceeded with the recommendation. In a move that has raised eyebrows, the Union government, which has often been accused of sitting on Collegium recommendations to express its discontent, approved the appointment with unprecedented alacrity, confirming it within just two days. This rapid approval, juxtaposed with the nine-month delay over his transfer, adds another layer of political intrigue to the entire affair.

The Unanswered Questions: A Cloud of Opacity

Justice Nagarathna’s dissent is not just a disagreement; it is a spotlight on a series of alarming questions that the Collegium and the government have left unanswered, creating a cloud of opacity around a crucial appointment.

1. The Nature of the “Grave Reasons”: What were the specific, “serious and grave” issues that prompted Justice Pancholi’s transfer from Gujarat? Were they related to judicial conduct, administrative efficiency, or something else entirely? The public, whose faith in the judiciary is paramount, is left to speculate in a vacuum.

2. The Deliberations of the 2023 Transfer: What deliberations took place within the Collegium at the time of the transfer? Were the reasons for the transfer documented and shared with all members, past and present? The nine-month delay suggests a story that remains untold.

3. Representations to the CJI: The report mentions that “representations” were made to the then Chief Justice of India, D.Y. Chandrachud, regarding Justice Pancholi. Who made these representations? Were they from members of the bar, the public, or within the judiciary? What were their contents? The suppression of these representations fuels suspicion.

4. The Suppression of the Dissent: Most crucially, why has Justice Nagarathna’s dissent note not been made public? She reportedly requested its upload alongside the Collegium’s resolution, a practice that would align with transparency. Its absence suggests a preference for a façade of unanimity over genuine accountability.

5. The Reason for Overruling: On what grounds did the majority of four judges overrule such strongly articulated concerns from a colleague? The Collegium’s resolution, typically a bland document, provides no reasoning for disregarding a dissent that warns of reputational catastrophe.

6. The Government’s Sudden Acquiescence: Why did the government, after demonstrating clear reluctance for nine months on his transfer, suddenly develop such unequivocal trust in the same judge’s elevation within 48 hours? This swiftness is anomalous and demands explanation.

These unanswered questions are not academic; they are foundational to the integrity of the appointment. As the editorial rightly asks, doesn’t the public deserve to make a full and informed judgement about a judge who is slated to become the Chief Justice of India someday?

The Collegium System: Under Siege and Self-Inflicted Wounds

This controversy could not have come at a worse time for the Collegium system. The system of judges appointing judges has been under relentless political attack from the executive, which has long desired a more significant role through a National Judicial Appointments Commission (NJAC). While the Supreme Court struck down the NJAC, upholding the Collegium system as a bulwark of judicial independence, it did so with a critical caveat: the system needed reform. It acknowledged its flaws, particularly regarding opacity and the lack of an objective, codified process.

Years later, those flaws are not just unaddressed; they are being spectacularly highlighted from within. The Pancholi episode is a textbook case of the system’s failures:

• Opacity: The entire process is shrouded in secrecy. The criteria for selection, the weighing of seniority versus merit, the consideration of diversity, and the handling of complaints are all invisible to the public eye.

• Lack of Accountability: When a decision is made, especially one overruling a powerful dissent, there is no obligation to explain the reasoning. This lack of accountability shields potential errors, biases, or compromises from public scrutiny.

• The Perception of an Old Boys’ Club: The system is often criticized for being insular, promoting conformity over diversity, and being susceptible to internal lobbying. The pushing through of a candidate despite serious, undisclosed objections from a senior colleague feeds directly into this damaging perception.

By failing to be transparent, the Collegium system is handing its critics on a platter the very ammunition they need to call for its overhaul. It is battling political attacks from the outside while simultaneously suffering self-inflicted wounds from within.

The Larger Imperative: Diversity, Representation, and Public Trust

Justice Nagarathna’s position as the sole dissenter and the only woman in the current Collegium brings another critical dimension to the fore: the abysmal lack of diversity in the higher judiciary. The Supreme Court has had only 11 women judges in its history and has never had a Chief Justice from the scheduled castes or scheduled tribes. The Collegium system has been justly criticized for its failure to ensure adequate representation of women, marginalized communities, and different regions.

A transparent system is not just about revealing reasons for appointments; it is also about demonstrating a conscious, deliberative effort to correct historical imbalances. When decisions are made behind closed doors without explanation, it is impossible to know if factors like gender and social background are being given due consideration or being conveniently ignored. Transparency is the only antidote to the suspicion that appointments are based on narrow considerations rather than a broad, inclusive vision for the judiciary.

Public trust is the ultimate currency of the judiciary. It cannot be commanded by authority; it must be earned through consistent demonstration of integrity, fairness, and openness. When the institution acts in a way that appears to prioritize consensus over correctness and secrecy over scrutiny, it erodes that trust. Citizens are asked to have faith in a process they are not allowed to see, for reasons they are not allowed to know, concerning individuals who will wield power over their fundamental rights. This is an unsustainable compact in a vibrant democracy.

The Path Forward: From Half-Measures to Meaningful Reform

The Supreme Court has taken tentative steps towards transparency. The current CJI, D.Y. Chandrachud, has been a proponent of making the system more open. The public disclosure of Collegium resolutions (though often sanitized) and the voluntary declaration of assets by judges are welcome steps. However, as the editorial astutely notes, in the face of a controversy like this, such measures risk appearing as mere “half-measures.”

The solution is not to abandon the Collegium system but to reform it radically from within. The judiciary must embrace a transparency that is profound and not merely cosmetic.

1. Publish Detailed Reasoning: Every Collegium resolution, especially for elevations to the Supreme Court and High Court Chief Justices, must be accompanied by a detailed statement of reasons. This should include the criteria considered, the merits of the candidate, and how they outweigh any known objections or concerns.

2. Make Dissents Public: As in judicial verdicts, dissent notes within the Collegium must be published simultaneously with the majority resolution. This would subject the decision-making process to healthy public debate and allow the dissenters to hold the majority accountable in the public eye.

3. Establish a Secretariat: The Supreme Court must urgently establish a permanent, independent secretariat for the Collegium to institutionalize the process, maintain records, manage intelligence checks, and provide objective data on potential candidates, moving away from ad-hoc, informal consultations.

4. Codify the Criteria: While protecting judicial independence, broad criteria for selection—including merit, integrity, seniority, regional representation, and diversity—should be formally codified and made public.

5. Engage with the Executive Transparently: The rules of engagement with the government, including timelines for responses and the handling of reiterations, need to be transparent and predictable to avoid unnecessary delays and suspicions.

Conclusion: The Sunlight That Must Disinfect

The controversy surrounding Justice Pancholi’s elevation is a symptom of a much deeper malaise within the Indian judiciary’s appointment process. Justice B.V. Nagarathna’s dissent is a courageous act that has served the nation by forcing a necessary conversation. It is a clarion call for the judiciary to look inward and heal itself.

The Supreme Court stands at a crossroads. It can choose to treat this as an internal matter, allowing the cloud of suspicion to linger until the next controversy erupts, further eroding its stature and playing into the hands of its critics. Or, it can choose to embrace the profound truth of the old adage: sunlight is the best disinfectant.

By shining a light on the totality of its decisions—the reasons, the debates, and the dissents—the Collegium system can transform itself from a perceived opaque cabal into a robust, accountable, and truly independent institution worthy of the public’s unqualified trust. The ball is in the court of the Supreme Court. The nation waits and watches, hoping its highest judges will choose the path of light over the comfort of shadow. The future of Indian judicial integrity depends on it.