The Supreme Court Collegium's recent proposal to elevate Patna High Court Chief Justice Vipul Pancholi to the apex court has been met with opposition from without and within.
Justice Pancholi, who will serve as India's 60th Chief Justice in 2031 if his appointment is cleared by the Central government, will also be the third sitting Supreme Court judge whose parent High Court is the Gujarat High Court.
However, one of the judges on the five-person Collegium - Justice BV Nagarathna - opted against Justice Pancholi's elevation. She reportedly opined that his appointment would not only be “counter-productive” to the administration of justice, but would also put the credibility of the Collegium system at stake.
In her dissent note, Justice Nagarathna reportedly pointed out that Justice Pancholi ranks 57th among High Court judges, and that more senior judges across High Courts could be considered ahead of him.
The note also mentioned Justice Pancholi's transfer from the Gujarat High Court to the Patna High Court in 2022 - a move that was mired in controversy. Initially, Justice Nikhil Kariel was proposed to be transferred to Patna. However, Gujarat High Court lawyers protested against the move, calling it the "death of independence of the judiciary".
Even as they sent a delegation to Delhi to meet with then CJI DY Chandrachud, the Collegium did a u-turn on Justice Kariel's transfer and instead recommended the transfer of Justice Pancholi to Patna.
Gujarat lawyers once again protested against the move, saying that it would be counter-productive to the interests of justice. However, these protests fell on deaf ears as the Central government approved Justice Pancholi's transfer.
Justice Nagarathna's dissent was overruled by the four other members of the Collegium - Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath and JK Maheshwari.
Questions have been raised on the lack of transparency in the Collegium resolution dated August 25, which recommended Justices Pancholi and Alok Aradhe for elevation to the Supreme Court.
Campaign for Judicial Accountability and Reforms (CJAR) has pointed out three missing details in the August 25 resolution:
1. Only names of appointees are mentioned without details being given of the background of the candidates as used to be the practice.
2. The collegium coram making the recommendations is missing.
3. Criteria for giving preference to a certain candidate even though they are lower in seniority are not being mentioned.
The organisation has also urged the Collegium to make public the dissent note of Justice Nagarathna.
On a separate note, CJAR has also raised questions on the recent Collegium recommendation to elevate 14 lawyers as Bombay High Court judges, including Raj Damodar Wakode, who is the nephew of CJI Gavai.
While lauding former CJI Sanjiv Khanna's move to disclose details on the background of candidates, including whether they were related to any sitting/retired judge, CJAR said in a press release,
"CJAR has repeatedly highlighted that such appointments that betray favouritism strike at the root of judicial propriety, and only full disclosures can quell the legitimate doubts that arise. It is necessary that details of the decision making process be put out in the public domain, to strengthen institutional transparency and accountability."
In May this year, under the leadership of former CJI Khanna, the Supreme Court decided to publish on its website the complete process of appointment of High Court and Supreme Court judges, including the inputs received from the State and Central government, and consideration by the Supreme Court Collegium.
The top court also made public the details about the candidates recommended for judgeships and whether their family members are or have been judges of the High Court or the Supreme Court in the past.
CJAR says that the August 25 resolution "makes a mockery of the earlier resolutions with respect to standards of transparency in judicial appointments".
It has thus urged that the detailed and reasoned resolutions of the Collegium be made public.