Justice BV Nagarathna's dissent on Justice Pancholi elevation should be made public: Justice Abhay Oka

Public has the right to know the reasons for Justice BV Nagarathna’s dissent over the elevation of Patna High Court Chief Justice- Justice Vipul Pancholi to the Supreme Court, former Supreme Court judge Justice Abhay S Oka opined on Wednesday.

Justice Oka, who retired from the Supreme Court in May this year, agreed that details of Justice Nagarathna’s dissent ought to have been placed on record.

“You are right when you say that one judge has dissented. We must know what is that dissent. There’s nothing wrong with that. You may be justified in criticising why that dissent is not on public domain,” Justice Oka said.

He explained that while dissent must be disclosed, full transparency in Collegium proceedings has to be balanced against the privacy of lawyers considered for elevation, many of whom return to law practice if not selected.

“Collegium considers cases of 10-15 lawyers. Collegium will say that he is not up to the mark, he has some doubtful reputation, etc. Are we not concerned with privacy of those individuals who volunteered to give consent? Because if 10 cases are considered, 5 will not be recommended. If those 5 are on public domain they have to go back and practice. So the issue of privacy is also there,” Justice Oka said.

Justice Oka was responding to a question posed to him by Senior Advocate Indira Jaising at the launch of the book '[In] Complete Justice? The Supreme Court at 75', edited by former Orissa High Court Chief Justice S Muralidhar,

Jaising criticised the system of judicial appointments, arguing that the selection of future Chief Justices of India was based on ideology and lacked transparency. She said the dissent of Justice Nagarathna, the only woman judge currently serving in the Supreme Court and the sole female member of the Collegium, should have been made public.

Jaising asked why the dissent had not been disclosed, what criteria were followed in deciding who would become future Chief Justices, and whether judges were swayed by the prospect of post-retirement positions.

“I believe in protesting in real time. How does the Collegium function? In the secrecy that it does. Today we have dissent by the sole woman judge on the Supreme Court who says she disagrees with the decision taken by the majority of the Collegium appointing a junior judge who will be the future Chief Justice of India. I want to know what are the criteria for selection. In my opinion they are ideological. A majoritarian Hindutva government wants its own people in the judiciary and what have you judges done about it? What is the lure of post-retirement that beckons judges? We want an answer to that question,” Jaising said.

Justice Oka agreed that details of Justice Nagarathna’s dissent ought to have been made public.

He noted that past resolutions of the Supreme Court had even disclosed the income of candidates under consideration, underscoring the need to carefully weigh transparency against the dignity of lawyers.

At the same time, he acknowledged that publishing the reasons for dissent would not pose the same concerns.

“Coming to the dissent, I fully agree with you we must know why that dissent is there. There you are absolutely right. We need a lot of thinking about it. There are pros and cons. Some people believe that only because we have entire resolution on public domain it brings about transparency. Perhaps transparency has to be in the process which is adopted by the High Court Collegium and up to government. But this issue requires debate. I amn glad that you’ve started that debate,” Justice Oka said.

The remarks come amid controversy over the Supreme Court Collegium’s August 25 resolution recommending the elevation of Patna High Court Chief Justice Vipul Pancholi to the Supreme Court.

The recommendation was cleared by the Central government on Wednesday. Justice Pancholi will have a long tenure at the Supreme Court and will also serve as its Chief Justice for over 1.5 years.

Justice BV Nagarathna dissented from the Collegium decision, reportedly warning that his appointment would be “counter-productive” to the administration of justice and harm the credibility of the Collegium. She also pointed out that Justice Pancholi ranked 57th in the all-India seniority list of High Court judges, while several senior judges had been overlooked.

Her dissent was overruled by Chief Justice of India BR Gavai and Justices Surya Kant, Vikram Nath and JK Maheshwari. The resolution uploaded on the Supreme Court’s website did not include the dissent note.

The decision attracted criticism from lawyers’ groups and civil society organisations, who flagged the absence of key details from the Collegium resolution including the criteria applied in preferring a junior judge for elevation.

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