The fine print of the Collegium’s latest appointments: A weekly round-up on Constitution First & Editor’s Pick (May)

Last August, the Hindustan Times reported that during the deliberations of the Supreme Court Collegium on the proposed elevation of Justice V.M. Pancholi, then Chief Justice of the Patna High Court, Justice B.V. Nagarathna, the lone woman judge in the Court at the time, had submitted a dissenting note arguing against his elevation. The reason? Not only was there a non-routine transfer, but he also ranked as low as 57th on the all-India seniority list of judges, far too low to be considered for elevation to the Supreme Court.

At the time, we put focus on what was, surely, the weightiest issue at stake: Justice Pancholi was set to be, because of this out-of-turn elevation, a future Chief Justice of India – beginning from October 2031, and it was one more, of a string of elevations, where it seemed that future CJIs were almost being cherrypicked, and without explanation. Almost a year later, supersession in appointments, and with complete opacity, continues to dominate the conversation around the judiciary.

Earlier today, five new judges took oath to the Supreme Court after their appointment was notified by the government, greenlighting the Collegium’s recommendations last week. The Court’s quorum had increased by four judges through an ordinance, earlier in May. There are no future chief justices in this lineup. But two of these appointments – of Justices Shree Chandrashekhar and Arun Palli – came by superseding senior judges from those very High Courts. Over time the Collegium itself has become more tight-lipped, with CJI B.R. Gavai’s tenure seeing the re-introduction of perfunctory collegium statements — a single page note conveying the Collegium’s wide-reaching decisions, deep deliberations on the future of the Court in as few words as possible. The Collegium Resolutions that once conveyed with clarity and substance how seniority, merit and diversity — regional, religion, gender, marginalised caste background — shaped these decisions, have seemed to have lost their administrative relevance. 

The groundbreaking outcomes of a vocal, public facing Collegium are difficult to offset. In January 2023, which was also the last time the Collegium had reiterated a recommendation for appointment which was in foul with the executive’s desire, the Collegium of CJI D.Y. Chandrachud and Justices S.K. Kaul and K.M. Joseph had lauded the recommendee Saurabh Kirpal’s openness about his sexuality: “In view of the constitutionally recognized rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

Today, very little of that frankness remains. Justice G.S. Sandhawalia, the Chief Justice of the Himachal Pradesh High Court who was superseded in the latest round of decisions could have been the first Sikh judge elevated since CJI J.S. Khehar, who had retired from the Supreme Court in 2017. And while today’s appointment brings senior advocate V. Mohana to the bench, an honest question to raise would be why there was only one woman appointee among five new judges? Will the Collegium under CJI Surya Kant recommend – among the five remaining judges it will appoint before his retirement – the three women Chief Justices leading our High Courts, bringing up, for the first time in the Court’s history, women’s representation on the bench to five? If it does not, will it even explain?