The Hindustan Times recently reported that Justice B.V. Nagarathna, a member of the Supreme Court collegium and the likely future Chief Justice if seniority is followed, dissented in the appointment of Justice Vipul Pancholi to the Supreme Court. The reported reasons were that his transfer from Gujarat High Court to Patna High Court was not a routine transfer, that he is 57th in the all-India seniority list, and that Gujarat is already represented by two judges in the Supreme Court — Justices Pardiwala and Anjaria.
An earlier piece has already set out why collegium resolutions need to be more reasoned and how they can serve as a starting point for greater transparency in the higher judiciary. That was written in the backdrop of an unusual incident — an alleged half-burnt cash pile found at a judge’s residential bungalow complex after a fire broke out on March 14, 2025, and the developments that followed. This piece, unfortunately, argues that collegium resolutions need to be uploaded in full; if there is a dissent that needs to be uploaded too. It is unfortunate because a dissent not being recorded is an issue that sets back whatever progress the collegium purportedly made until now.
Collegium Dissents and the Need for Transparency
When two judges of the collegium oppose a proposal for elevation or re‑elevation, it is customary — and it has also been laid down by the Supreme Court in the Judges’ Cases — that the Chief Justice should not press for that appointment. In the present matter, going by reports, since it was only Justice B.V. Nagarathna who dissented, the recommendation was proceeded with.
There is no inherent problem in a rule being followed. The debate about whether such a rule is unfair or unjustified is a separate question. But if a rule is being followed, there must be transparency in its making, its mechanisms, and its application. If the practice is that a 4:1 majority carries the day, then the workings of that practice must be clear: who formed the majority, who dissented, and what reasons were recorded for the dissent. There could be ten things which tell an observer of Indian polity as to why appointment of certain judge is driven by executive zeal rather than judicial independence. It is expected of the executive to push for its agenda, but it is the imperative of the judiciary to withstand these attempts and stand tall upholding fairness and integrity, consistently.
Without a minimum level of disclosure, the most important thing a collegium requires — support of the public — steadily erodes. Public confidence is built not by secrecy, but by showing that rules are real, consistently applied, and open to scrutiny. And moreover, unlike the executive which, despite being popular, maintains its dominance by use of force, propaganda—the judiciary’s strength comes from the trust of a billion people. Omissions or actions that could result in the erosion of this trust from the people is concerning for all those who look at judiciary with hope.
This is not to throw mud at Justice Pancholi or any other Supreme Court judge. Imagine if the dissent was on the basis that there is no women representation in the Supreme Court and Justice B.V. Nagarathna batted for it and therefore dissented an elevation of someone 57th on the seniority list. That would not make such dissent any less important. The resolutions of the collegium and the necessity for it to function transparently and fairly is not about the individual judges that constitute it or the judges it appoints. The question of whether it would be fair to judges if such dissent notes are made public or not, or whether collegium should appear to be broken or not are immaterial in the face of immense public interest that runs with the principle of transparency to which collegium should not be an exception.
What is to be done then?
The larger question raised by this report is not simply about one appointment, but about the collegium itself. If dissents exist, why do we not have a consistent way of recording and publishing them? Why should the style and detail of collegium resolutions change with every Chief Justice?
There is a straightforward solution. The next seven Chief Justices of the Supreme Court are already part of the Court today, if the convention of seniority is followed. The Supreme Court can come out with a comprehensive format of the resolution, frame rules for the format and mechanism of Collegium resolutions and follow them. This regime can be supported by the existing judges of the Supreme Court along with the future Chief Justices. Once that format is agreed upon, it should be binding not only on the present collegium but also on the successive Chief Justices and collegiums who will assume office in the coming years. In effect, the institution would set rules for itself — rules that endure beyond the preferences of a single Chief Justice.
Such a mechanism would bring predictability and credibility. It would ensure that future resolutions, whether on appointments or transfers, follow a consistent template, and that dissents are neither invisible nor dependent on the inclination of the Chief Justice of the day. This is not outside the scope of the Supreme Court. It is entirely possible — and necessary — for them to agree on a self-binding practice that strengthens the collegium’s transparency and stability.
The call for a uniform, enduring format for collegium resolutions is not merely a procedural plea but a constitutional necessity. As Montesquieu warned in The Spirit of Laws, “power ought to be a check to power”; opacity in judicial appointments allows concentrated discretion to escape that check. Immanuel Kant’s categorical imperative would similarly demand that if transparency is a duty for one Chief Justice, it must be a duty for all — for justice is not episodic, it is systemic. The worth of an institution is measured by whether it pursues legitimacy or merely convenience. To neglect to record dissents is to betray the very spirit of law. The time has come, therefore, for the Supreme Court to rise above personalities and preferences and to bind itself in a framework of reasoned, transparent, and consistent resolutions. Anything less is an abdication of the Court’s moral authority to demand accountability from every other institution of the Republic.
(The author is part of the legal research team of the organisation)
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