Justice Kureshi Saga : Death Knell For Independence Of Judiciary

Late on Friday night, a resolution passed on September 5 by the Supreme Court Collegium was uploaded on the court's website. Through the resolution, the Collegium, headed by Chief Justice of India Ranjan Gogoi, modified the recommendation it had made on May 10 to the central government to appoint Justice Akil Abdulhamid Kureshi as the Chief Justice of Madhya Pradesh High Court to now appoint him as Tripura High Court's Chief Justice. Though no reason was given for this sudden modification, it was stated that the decision had been arrived at after taking into account two communications, along with accompanying material, from the Government dated August 23, 2019 and August 27, 2019.

While hearing a petition by the Gujarat High Court Advocates Association (GHCAA) on September 16, CJI Gogoi had stated that a decision had been taken, which would be uploaded soon. The matter is listed to come up for hearing again on September 23.

The appointment of Justice Kureshi has been amongst the most eagerly awaited decisions since the Modi 2.0 government came to power. This is because, soon after assuming his role as the Union Law Minister, Ravi Shankar Prasad had asserted that his Ministry would not be a mere "post office". The allusion was understood to be that the Ministry, being a stakeholder, would play a more active role in vetting and examining all the names received from the Collegium for appointments to the higher judiciary, and not simply endorse every name given. The question raised, however, was whether the Government would need to be satisfied with each recommendation, even though the Collegium was. So would it be possible for the Government to get the Collegium to change a recommendation which they were not happy about, despite the Collegium finding them suitable?

Judicial appointments are made under the Memorandum of Procedure (MoP) according to which the Collegium recommends a name to the Centre, which either approves it or sends it back to the Collegium, with written reasons, for reconsideration. If the recommendation is reiterated after reconsideration as requested, it becomes binding upon the Centre to approve the same. However, there is no timeline for the Centre to send back a name for reconsideration. It can choose to keep a recommendation pending without taking any action on it. This is a loophole in the MoP, which is yet to be plugged since Supreme Court struck down the National Judicial Appointments Commission Act in 2015. And this is a loophole that seems to have been used by the Centre to sit on J Kureshi's recommendation for around 4 months.

On May 10, the Collegium had recommended the names of four judges to be appointed as Chief Justices of various High Courts. This included the recommendation of J Kureshi as Chief Justice of Madhya Pradesh High Court, while Justices D N Patel, V Ramasubramanian and R S Chauhan were recommended for Chief Justices of High Courts in Delhi, Himachal Pradesh and Telangana respectively. Interestingly, J Patel's recommendation was cleared on May 22 and he was appointed CJ of Delhi HC. Choosing to accept some names, while holding on to others is in itself a deviation from the government's usual practice of accepting the Collegiums recommendations in toto. While the remaining recommendations remained on hold, the tenure of sitting Chief Justice of MP High Court, Justice Sanjay Kumar Seth, was due to expire on June 9. Ignoring the name of J Kureshi, the government notified the appointment of Justice Ravi Shanker Jha, who was the senior-most judge of that High Court, as acting Chief Justice, with effect from June 10, on June 7. Then on June 19, the names of Justices Ramasubramanian and Chauhan were also cleared, leaving J Kureshi's name pending yet again.

J Kureshi is the senior-most judge of the Gujarat High Court, though currently on transfer in Bombay High Court on transfer, where he is very popular and well-respected amongst members of the Bar. The Bar association or GHCAA convened a meeting, conducted a protest, and have filed a PIL in the apex court challenging the Government's inaction. Criticizing the delay in taking a call, the petition has called the Government's tactics violative of Articles 14 and 217 of the Constitution.

Interestingly, this is not the first time that J Kureshi's appointment as Chief Justice of a High Court has been jeopardized. When Justice Subhash Reddy, then Chief Justice of Gujarat High Court, was to be elevated to the Supreme Court in Novemeber 2018, it was expected that J Kureshi would be his natural successor and assume the office, being the second most senior judge there. However, the Supreme Court Collegium recommended his transfer to the Bombay High Court on October 29, 2018, with effect from November 15, 2018. On November 1, 2018 the Law Ministry issued a notification saying justice A S Dave, a judge junior to J Kureshi, would take over as acting Chief Justice of the Gujarat HC. Conventionally, the Acting Chief Justice (ACJ) of a court is the most senior. This was the first time that the Government's unwillingness to appoint J Kureshi as a Chief Justice was sensed, leading to protests by the GHCAA. Not only was it protested that J Kureshi would effectively be under his junior as ACJ but also that he was being sent to Maharashtra where he would be the 5th in rank of senior-most judges, when he was already the senior-most in Gujarat.

On November 2, through a notification, J Kureshi was appointed ACJ till the time he assumed his duties at the Bombay High Court. So for a period of 12 days, he served as ACJ in Gujarat. The CJI had then clarified that the earlier order, which made J Dave the acting Chief, was a mistake. Even if that was a mistake, the undisclosed reasons behind transferring him to Bombay continued to raise questions, especially within the Gujarat Bar.

The Gujarat Bar has been unanimous in standing in support of Justice Kurehsi. When the order for his transfer to Bombay HC was issued in October 2018, the Bar Association passed a unanimous resolution, by saying tat it was motivated by 'extraneous reasons'. Senior Advocate Yatin Oza, the President of the GHCAA, had announced the decision of the bar to resort to indefinite strike over the transfer of Justice Kureshi. This was later withdrawn after CJI Ranjan Gogoi met the representatives of Association.

The Bar expressed solidarity with him in the issue of delay in notifying the proposal to appoint him as CJ of MP HC. Senior members of the bar - Yatin Oza, Milind Thakore, Percy Kavina etc -were present in the Supreme Court during the hearings of the GHCAA petition, which was argued by esteemed Senior Advocate F S Nariman.

In 2010, J Kureshi had remanded Union Home Minister, Amit Shah, who was then junior Home Minister of Gujarat, to two days Police Custody in relation to the Sohrabuddin-Kausar Bi case. In 2012, J Kureshi upheld the decision of the Governor to appoint (Retd) Justice RA Mehta as Lokayukta in Gujarat without consulting the Council of Ministers.

These two adverse orders have been widely spoken of and speculated about as being the reasons behind the Government's unhappiness with J Kureshi. In light of the modified order now if we go back to the statement made by Law Minister RS Prasad, it seems plausible that the interpretation could be that the Government will have a say in which judge gets appointed where. And, more importantly, that a perceived grudge could be enough reason to flout well laid out procedures. Since the Second Judges' Case, in 1993, a Supreme Court Collegium has never modified its recommendation after having found someone to be suitable for appointment. This unprecedented deviation raises serious concerns about how unrelenting the government could have been in its opposition to the appointment and whether the Collegium is willing to accede to the Government's stand, if need be. Another serious question that arose was whether the Collegium chose to avoid a constitutional crisis by modifying its recommendation, since it apprehended non-compliance by the centre in case of reaffirmation.

The other concern one must raise is in light of recent events concerning the Madras High Court Chief Justice, J VK Tahilramani, whose resignation was accepted by the President on September 20. Since J Kureshi has been recommended for the Tripura High Court and J Tahilramani was to be transferred to Meghalaya, is it safe to assume that judges who are out of favour will be sent to states where courts are smaller, and matters fewer? If a judge is not considered fit, based on merit, to discharge the duties of the Chief Justice of a High Court, should it matter whether that court is larger or smaller, whether it has more or less matters to deal with? If a judge lacks merit, according to the Government or the Collegium, is it not counter-productive to send them to head any court, regardless of the state? So if the Government has sent the Collegium two communications, which presumably highlight the reasons behind their disinclination to appoint J Kureshi as the CJ of the MP High Court, which presumably would to be based on merit, why is the same judge deemed fit to be the CJ of Tripura HC? Surely the competence of a judge would be the reason behind their appointment, but if a judge is deemed to not be competent enough to hold the office, surely they can't be thought of as competent enough for the same office in another part of the country. Or is it to be assumed that a judge who is not fit to preside over a HC in Madhya Pradesh, Gujarat or Tamil Nadu is a good fit to administer justice in Tripura or Meghalaya?

This controversy yet again opens up the debate regarding transparency in the process of appointment of judges. What needs to be seen is if the Collegium or the Centre decide to divulge the reason behind the modification in J Kureshi's recommendation. For a government which has called for transparency in judicial appointments through NJAC, it seems only correct for them to show the way forward and restore faith. After all, justice must not just be done, but seem to be done.