Explained: Justice Pancholi’s elevation to SC, Justice Nagarathna’s dissent, and the Collegium controversy

Justice Nagarathna dissented against the opinion of the four other members of the Collegium -- CJI Gavai and Justices Surya Kant, Vikram Nath and JK Maheshwari, against the recommendation of Justice Vipul Pancholi for elevation to the Supreme Court

The Supreme Court Collegium’s decision on Monday to recommend Patna High Court Chief Justice Vipul Manubhai Pancholi for elevation to the Supreme Court has triggered a sharp debate, both within the collegium and outside.

While the five-member Collegium led by Chief Justice of India BR Gavai recommended the names of Justice Alok Aradhe and Justice Pancholi on August 25, Justice BV Nagarathna reportedly recorded a rare dissent note.

Justice Nagarathna dissented against the opinion of the four other members of the Collegium -- CJI Gavai and Justices Surya Kant, Vikram Nath, and JK Maheshwari. Her objections have put the spotlight back on questions of seniority, representation, transparency, and the workings of the Collegium system itself.

The controversy around Justice Pancholi

The Collegium recommended Justices Aradhe and Pancholi with a 4:1 split, as Justice Nagarathna recorded a strong note of dissent against Justice Pancholi’s appointment and underlined 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.”

According to reports, her note highlighted the circumstances of Pancholi’s transfer from the Gujarat High Court to the Patna High Court, which she said was not a routine transfer, but a carefully considered move made after consultations with several senior judges, all of whom concurred with the decision. She urged that “the confidential minutes underpinning the 2023 transfer be called for and perused”, reported Hindustan Times.

She also pointed out Pancholi’s low seniority, noting that he “ranks 57th among high court judges nationwide,” and stressed that “several meritorious and more senior judges across high courts could be considered ahead of him.”

On regional balance, the note warned that “the Gujarat high court is already represented on the Supreme Court by justices JB Pardiwala (who is slated to be CJI between May 2028 and August 2030) and NV Anjaria. Adding a third judge from the same high court… would skew the balance when many high courts remain unrepresented or under-represented.”

Justice Nagarathna further cautioned that “advancing Justice Pancholi despite these concerns would be counter-productive to the administration of justice and would place at risk ‘whatever credibility the collegium system still holds’.”

She added that the decision would have long-term impact, as “if Justice Pancholi is appointed now, he would be in line to become CJI from October 2031 to May 2033, for about one year and eight months. In her view, that outcome would not be in the institution’s interest and would entrench the very concerns she has flagged.

She also urged that her dissent note be uploaded on the Supreme Court’s website, aligning with the court’s recent emphasis on publishing Collegium reasons and fostering transparent decision-making.

The NGO Campaign for Judicial Accountability and Reforms (CJAR) echoed these criticisms. It said the collegium’s August 25 resolution “makes a mockery of the earlier resolutions with respect to standards of transparency in judicial appointments.”

Referring to Justice Nagarathna’s objections, it added: “It is not clear what has swayed the Supreme Court collegium in recommending Justice Pancholi to the Supreme Court, since Justice Pancholi is not merely the third judge from Gujarat to be elevated to the Supreme Court, (disproportionate to the size of the Gujarat High Court and leaving various other High Courts unrepresented) but he is also 57th in all India seniority list of High Court judges.”

The organisation pointed out three missing details:

“Only names of appointees are mentioned without details being given of the background of the candidates as used to be the practice.”

“The collegium coram making the recommendations is missing.”

“Criteria for giving preference to a certain candidate even though they are lower in seniority are not being mentioned.”

CJAR has also urged that Justice Nagarathna’s dissent note be made public.

On a separate note, CJAR raised concerns about alleged favouritism in the collegium’s recent recommendation of 14 lawyers for elevation to the Bombay High Court, including Raj Damodar Wakode, nephew of CJI Gavai. “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. Details of the decision-making process must be put out in the public domain, to strengthen institutional transparency and accountability,” the group said in a press release.

The dissent comes against the backdrop of a wider gender imbalance. With Justice Bela M Trivedi’s retirement on June 9, 2026, Justice Nagarathna remains the sole woman judge in the Supreme Court. Since then, three appointments have been made and two more are now recommended; none has been a woman.

The Collegium debate

The Collegium system itself was born of a struggle between the executive and the judiciary. It was shaped through the Three Judges Cases, which sought to ensure that appointments were not dictated by the government, reported The Hindu.

In the First Judges Case, the court held that consultation with the Chief Justice of India should be “full and effective.” The Second Judges Case in 1993 introduced the collegium system, ruling that the CJI would have to consult his two senior-most colleagues and that this “collective opinion” would have primacy over the government. The Third Judges Case in 1998 expanded the collegium to its current form of the CJI and four senior-most judges.

The principle behind the Collegium is that “the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.” But over the years, it has been criticised for “its lack of transparency” and even “nepotism.”

An attempt to replace it with the National Judicial Appointments Commission (NJAC) was struck down by a Constitution Bench of the Supreme Court in 2015.

At the same time, the Collegium has not solved the chronic problem of arrears. The number of pending cases has risen to 87,445 as of August 27, 2025, from over 55,000 in 2017. This is even though the sanctioned judicial strength of the court was increased to 34 judges in August 2019.

A question of transparency

The controversy comes just months after the Supreme Court, under former CJI Sanjiv Khanna, took steps towards openness. In May this year, the apex 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.

Against that backdrop, 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.