Justice Nagarathna dissents on Pancholi’s elevation to Supreme Court by Collegium

Besides CJI Bhushan R Gavai, the Collegium comprises Justices Surya Kant, Vikram Nath, JK Maheshwari and Nagarathna.

The Supreme Court has routinely underlined three factors as its selection criteria – the combined seniority on an all-India basis of Chief Justices and Judges of High Courts, the principle of representation, and ‘merit and integrity’.

In the past, these factors have been “balanced” to recommend a HC judge for appointment. Especially, in the appointment of candidates who are likely to become CJI, seniority is bypassed to ensure the line of succession.

Regional balance

Sources said Nagarathna’s concerns were about recommending one more judge from the Gujarat High Court, less than three months after Justice NV Anjaria, also from the same high court, was appointed to the Supreme Court. In May, when Justice Pancholi’s candidature first came up for discussion, at least two judges in the Collegium had expressed concerns on his lack of seniority. His recommendation would have meant bypassing those who were senior to him at the Gujarat HC including Justice Anjaria.

Sources said that to address the concerns on seniority, the Collegium instead recommended Justice Anjaria and Justice Pancholi was appointed the Chief Justice of the Patna HC.

However, when his name came up again, Justice Nagarathna is learnt to have raised questions again, this time focusing on the over-representation of Gujarat HC in the SC.

If Justice Pancholi were to be appointed, the Supreme Court would have three judges from the Gujarat High Court – Justices JB Pardiwala, Anjaria and Pancholi. Both Justices Pardiwala and Pancholi would be in the line of succession as Chief Justices of India in 2028 for a period of two years and in 2031 for a period of seven months, respectively.

Till May, the Supreme Court had three judges from the Gujarat HC – Justices Pardiwala, MR Shah and Bela Trivedi. While Justice Shah retired in May, Justice Trivedi’s last working day was May 16. There are also three judges each from the Bombay High Court, Allahabad HC and the Punjab and Haryana HC.

The Supreme Court has a sanctioned strength of 34 judges, and the sanctioned strength of each HC is taken into consideration to ensure adequate regional representation. It is probably the under-representation of other HCs in the apex court that Justice Nagarathna’s concerns reflect.

For example, the Gujarat HC, which has three judges in the SC, has a sanctioned strength of 52 judges, while other HCs, which also have a representation of three judges each, have a much higher sanctioned strength- Allahabad has 160; Bombay has 94 and Punjab and Haryana HC have 85 judges. In contrast, the Madras HC (75) and Calcutta HC (72), which have more sanctioned strength, have only two judges each in the SC.

Supreme Court: How states are represented

Allahabad (3)

Vikram Nath

Pankaj Mithal

Manoj Misra

Andhra Pradesh (1)

Sarasa Venkatanaryana Bhatti

Bombay (3)

Bhushan Ramkrishna Gavai

Prasanna Bhalachandra Varale

Atul Sharachchandra Chandurkar

Calcutta (2)

Dipankar Datta

Joymalya Bagchi

Chhattisgarh (1)

Prashant Kumar Mishra

Delhi (1)

Manmohan

Gauhati

Ujjal Bhuyan

Gujarat (2)

Jamshed Burjor Pardiwala

Nilay Vipinchandra Anjaria

Himachal Pradesh (1)

Sanjay Karol

Karnataka (2)

B.V. Nagarathna

Aravind Kumar

Kerala (1)

Krishnan Vinod Chandran

Madhya Pradesh (2)

Jitendra Kumar Maheshwari

Satish Chandra Sharma

Madras (2)

M.M. Sundresh

R. Mahadevan

Manipur (1)

Nongmeikapam Kotiswar Singh

Patna (1)

Ahsanuddin Amanullah

Punjab & Haryana (3)

Surya Kant

Rajesh Bindal

Augustine George Masih

Rajasthan (2)

Sandeep Mehta

Vijay Bishnoi

Telangana (1)

P.V. Sanjay Kumar

Bar (Direct Elevation)

P.S. Narasimha (7)

K.V. Viswanathan (19)

Sanctioned strength of each High Court