Former Supreme Court judge Abhay Oka said Justice BV Nagarathna’s dissent over Justice Vipul Pancholi’s elevation must be disclosed. He stressed transparency in Collegium decisions while balancing lawyers’ privacy.
Former Supreme Court judge Justice Abhay S Oka on Wednesday said that the public has the right to know the reasons behind Justice BV Nagarathna’s dissent in the elevation of Patna High Court Chief Justice Vipul Pancholi to the Supreme Court.
Justice Oka, who retired from the apex court in May this year, said the details of Justice Nagarathna’s dissent should have been made part of the public record.
Justice Oka said,
“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 explained that while dissent must be shared openly, complete transparency in Collegium proceedings needs to be balanced with protecting the privacy of lawyers who are considered for elevation but are not selected.
Justice Oka said,
“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 was answering a question raised by Senior Advocate Indira Jaising during the launch of the book ‘[In] Complete Justice? The Supreme Court at 75’, edited by former Orissa High Court Chief Justice S Muralidhar.
Indira Jaising criticised the current system of judicial appointments, saying the choice of future Chief Justices of India was guided more by ideology than by transparent standards.
Jaising said,
“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.”
Justice Oka accepted her concern and repeated his opinion that Justice Nagarathna’s reasons for dissent should have been made public.
Justice Oka said,
“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 also recalled that in earlier times, some Collegium resolutions even revealed the income of candidates being considered for judgeship, and pointed out that transparency must not come at the cost of the dignity of lawyers. However, Justice Oka noted that publishing dissent reasons would not pose such risks.
These remarks come amid the Supreme Court Collegium’s August 25 resolution recommending the elevation of Justice Vipul Pancholi to the Supreme Court, which has triggered widespread debate.
The Central Government cleared the recommendation on Wednesday. Justice Pancholi will now have a long tenure in the Supreme Court and is set to become the Chief Justice of India for over one and a half years.
Justice BV Nagarathna had dissented against this elevation, reportedly warning that his appointment would be “counter-productive” to the administration of justice and would “harm the credibility of the Collegium.”
Justice Nagarathna also pointed out that Justice Pancholi was ranked 57th in the all-India seniority list of High Court judges, while several senior judges were 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 official website did not include Justice Nagarathna’s dissent note.
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