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Justice B.V. Nagarathna’s dissent on the elevation of Justice Pancholi

02 Sep 2025 GS 2 Polity
Justice B.V. Nagarathna’s dissent on the elevation of Justice Pancholi Click to view full image

Context

  • Collegium System: Judicial appointments in India are decided by the Supreme Court Collegium (CJI + 4 senior-most judges).

  • Case in Point: Justice Vipul Manubhai Pancholi elevated to the Supreme Court (Aug 29, 2025). He is in line to become CJI in 2031.

  • Dissent: Justice B.V. Nagarathna (lone woman SC judge, due to be first woman CJI in 2027) formally dissented from the decision.

Grounds of Dissent

1. Merit & Integrity

  • Collegium resolution (July 2024) stated criteria: merit (judgments, performance), integrity, diversity, representation.

  • Nagarathna questioned Pancholi’s past record:

    • Transfer from Gujarat to Patna High Court (2023) followed serious concerns.

    • Prior reprimand from Justice Vikram Nath (then Gujarat CJ).

2. Seniority & Representation

  • Justice Pancholi ranked 57th in all-India seniority.

  • Justice Anjaria (senior, also from Gujarat) had already been recommended.

  • With Justices Pardiwala & Anjaria from Gujarat, third judge from same High Court raised questions of regional imbalance.

  • Several High Courts (e.g., J&K, Orissa, Jharkhand, Sikkim, Meghalaya, Tripura, Uttarakhand) lacked representation.

3. Future of the Institution

  • Pancholi is in line to be CJI (2031–33) → hence very high bar must apply.

  • Dissent was a warning against lowering standards, given CJIs safeguard judicial independence.

4. Collegium Process Concerns

  • Collegium ought to consult judges familiar with candidate’s High Court (as per SC’s own guidelines).

  • Justice Pardiwala’s inputs (ex-Gujarat HC) reportedly not sought.

  • Lack of transparency could erode credibility of the system.

Larger Constitutional & Ethical Dimensions

  • Judicial Independence: Nagarathna’s dissent echoes NJAC judgment (2015) → warned against executive interference and lowering of internal standards.

  • Checks within Collegium: Dissent highlights need for reasoned decisions, transparency, and accountability.

  • Diversity & Representation: Collegium must ensure gender, regional, and community balance in SC composition.

  • Ethical Leadership: Elevating a future CJI demands utmost scrutiny since credibility of judiciary rests on perception of fairness.

  • Collegium system, separation of powers, judicial independence.

  • Case reflects challenges in appointments → regional imbalance, gender under-representation, lack of transparency.

  • Integrity vs Compromise: Should institutional credibility be sacrificed for convenience?

  • Moral Courage: Standing as lone dissenter for long-term institutional health.

  • Ethical Leadership: Responsibility of judges in shaping future justice delivery.


Judges Cases and Related Constitutional Provisions

Constitutional Provisions

  1. Article 124(2) – Appointment of Supreme Court judges by the President after consultation with judges of the Supreme Court and High Courts as deemed necessary.

  2. Article 217(1) – Appointment of High Court judges by the President after consultation with the Chief Justice of India (CJI), Governor of the State, and Chief Justice of the High Court concerned.

  3. Article 74 – Council of Ministers aids and advises the President.

  4. Article 50 – Directive Principle: Separation of judiciary from the executive.

  5. Basic Structure Doctrine – Independence of the judiciary is part of the basic structure.

The Judges Cases

1. First Judges Case (S.P. Gupta v. Union of India, 1981)

  • Issue: Whether "consultation" with the CJI in appointments under Articles 124 and 217 meant "concurrence."

  • Judgment:

    • The Court held that consultation does not mean concurrence.

    • Executive had the final say in judicial appointments.

    • Reduced role of the CJI to just one of many consultees.

  • Significance: Tilted balance of power towards the executive.

2. Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993)

  • Issue: Whether primacy should be given to the judiciary in appointments.

  • Judgment:

    • Overruled First Judges Case.

    • Held that consultation = concurrence.

    • CJI’s opinion, formed with a collegium of 2 senior-most judges, would have primacy in appointments.

  • Significance: Birth of the Collegium System, where judiciary became dominant in appointments and transfers.

3. Third Judges Case (Presidential Reference, 1998)

  • Context: President sought Supreme Court’s opinion on functioning of collegium (under Article 143).

  • Judgment:

    • Collegium was expanded to CJI + 4 senior-most judges of the SC.

    • CJI’s individual opinion not binding; decision must be taken collectively.

    • Ensured judicial primacy + collective decision-making.

  • Significance: Strengthened collegium system; reduced arbitrariness of individual CJI.

Related Important Cases

  1. Fourth Judges Case (NJAC Case, 2015 – Supreme Court Advocates-on-Record Assn. v. Union of India)

    • Struck down the 99th Constitutional Amendment and NJAC Act, 2014.

    • Held that judicial primacy in appointments is part of the basic structure.

    • NJAC would have given executive greater role, hence unconstitutional.

  2. Kesavananda Bharati v. State of Kerala (1973)

    • Laid down Basic Structure Doctrine.

    • Independence of judiciary forms part of basic structure.

  3. Indira Nehru Gandhi v. Raj Narain (1975)

    • Reaffirmed that independence of judiciary cannot be diluted.

  4. Sankalchand Sheth case (1977)

    • On transfers of judges under Article 222.

    • Sankalchand Himatlal Sheth is still notable today since it established essential guidelines for the harmonious independence of the judiciary in India. 

    • The ruling observed judicial independence from governmental overreach by upholding the rule that High Court judges cannot be transferred without their consent

Evolution of Appointment System

  • Pre-1981: Executive primacy.

  • 1981–1993 (First Judges Case): Executive dominance confirmed.

  • 1993–1998 (Second Judges Case): Judicial primacy, collegium introduced.

  • Post-1998 (Third Judges Case): Collegium expanded to 5 judges.

  • 2015 (Fourth Judges Case): NJAC struck down; collegium revived.



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