Need to look into reason of dissent in collegium process: Former SC judge AS Oka

New Delhi, Aug 27 (PTI) A day after two high court chief justices were elevated to the Supreme Court, despite Justice B V Nagarathna’s strong dissent to the collegium’s recommendations, former Supreme Court judge A S Oka said there should be transparency in the process from the high courts to the government and any dissent in the collegium needs to be looked into.

Justice Oka was responding to a question by senior advocate Indira Jaising at the launch of the book, “(In)Complete Justice? The Supreme Court at 75”, edited by former Chief Justice of Orissa High Court S Muralidhar.

Jaising asked the panel, consisting of justices Muralidhar and Oka and political scientist Gopal Guru, about the functioning of the collegium that works in “secrecy” and wanted to know “the criteria for selecting the future Chief Justices of India” at a time when there’s a dissent by the sole woman judge of the Supreme Court.

“This question is of a great deal of concern, but I have been saying that we have to define what is transparency. You are right in saying that when one judge has dissented, we must know what is that dissent - there is nothing wrong in that. You may be justified in criticising why that dissent is not in the public domain,” Oka said.

Oka explained that if deliberations and minutes of the collegium are uploaded in the public domain, it may affect the privacy of the lawyers who have consented to be considered by the collegium.

“If the collegium considers 10 or 15 lawyers, of which 10 cases are considered and five may not be recommended, are we not concerned with the privacy of those individuals who volunteered to give consent? They will have to go back and practice,” he noted.

The former chief justice of Karnataka High Court added that once these matters are part of the public domain, the salary of the last three years of these individuals becomes public.

“So we have to balance it with privacy,” he noted.

On August 25, the five-member collegium led by CJI B R Gavai recommended the names of Bombay High Court Chief Justice Alok Aradhe and Justice Pancholi for elevation.

If appointed, Pancholi will be in line to become the CJI in October 2031 after Justice Joymalya Bagchi’s retirement.

Sources said Nagarathna opposed the recommendation citing Pancholi’s relatively low seniority, questions over his transfer from Gujarat to Patna High Court in July 2023, and concerns about regional imbalance in Supreme Court representation.

She noted the transfer was “not routine” but a carefully considered decision after wide consultations. Justice Oka said the reason behind the dissent should be known.

“And about dissent, I agree, we have to know why that dissent is there. We need a lot of thinking about it because there are a lot of pros and cons about it. Some people believe that only because we have the entire resolution in the public domain it brings about transparency.

"But transparency has to be in the process which is adopted by the High Court collegium up to the government. But this issue requires debate and I am glad that you have started that debate,” he said.

The book published by Juggernaut is a compilation of essays and interviews from the likes of former Delhi High Court chief justice Ajit Prakash Shah, legal scholars Faizan Mustafa and Upendra Baxi, senior lawyers Vrinda Grover, Nitya Ramakrishnan and Indira Jaising, and former Supreme Court judge Madan Lokur.

The range of authors offer a critical exploration of the Supreme Court’s evolving role and functioning with an aim “to foster meaningful dialogue and deepen public understanding of the Court’s challenges in retaining its legitimacy while striving to fulfil the constitutional promise of equal and fair justice”. PTI MAH RHL RHL