The Supreme Court has to decide whether to reconsider its earlier recommendation or to reiterate Justice Kureshi’s name.
The ongoing tussle of supremacy between the country’s executive and judiciary continues unabated as evident in the holding up of the recommendation of the collegium of the Supreme Court (SC) to elevate Justice Akil Abdul Hamid Kureshi as the Chief Justice of Madhya Pradesh.
Justice Kureshi is the senior-most judge of the Gujarat High Court, currently serving in the Bombay High Court. The government order was issued by the Ministry of Law and Justice on 7 June 2019, in view of the June 9 retirement of the then chief justice S.K. Seth. The chronology of the development goes like — that instead of clearing the name of Justice Kureshi the chief justice to the post of Madhya Pradesh High Court, his junior Ravi Shankar Jha was made the acting chief justice. Justice Kureshi’s proposal was made by the SC collegium on 10 May this year.
In 2018, when Justice Kureshi, who then was the senior most judge of the Gujarat High Court, was supposed to be appointed as the acting chief justice, then the government ensured that he was transferred to Bombay High Court with immediate affect so that his junior Justice A.S. Dave is appointed to the post.
The Gujarat High Court Advocate Association (GHCAA) had then, strongly protested at this decision of bypassing the principle of seniority. But then, governments have their own clever ways of manipulation.
Justice Kureshi did his LLB degree in 1983, and started practicing as an advocate in the Gujarat High Court. He was appointed as the additional judge of the Gujarat High Court in March 2004 and was confirmed as a permanent judge in 2005.
Even a quick glance at developments related to the denial of elevation to a higher post to Justice Kureshi clearly reveals that the government is not welcome to the idea of judiciary to function independently. Within the first few months that Modi government came to power, it is in its own wisdom and riding on the popular wave after receiving a huge popular mandate in 2014, had enacted an act for setting up a National Judicial Appointments Commission (NJAC) sowing seeds of discord around the ongoing confrontation.
The Supreme Court held its ground when it declared the NJAC Act as unconstitutional through a collective order on 16 October 2015 by a majority of 4 to 1. There is no denying the fact that an independent judiciary is the foundation of democracy because of people’s faith in the government and democratic system, which would totally be eroded if the judicial process is not popularly perceived as fair and non-partisan.
While Justice Kureshi’s case of denial of his right is not the first act of delayed justice by the Modi government, it had done almost the same with Justice K.M. Joseph earlier in 2018, whose case of recommendation by the Supreme Court collegium for elevation to the apex court was delayed for a considerable period of time.
In case of Justice Joseph, the Minister of Law and Justice Ravi Shankar Prasad, through a written communique, had asked the collegium to reconsider its 10 January 2018 decision to elevate him to the apex court.
The Supreme Court collegium did not go for a direct confrontation with the government but chose to reiterate its earlier decision. The five senior-most SC judges had said that they had “on principle, unanimously agreed that the recommendation for appointment of Justice K.M. Joseph as a judge of the Supreme Court should be reiterated.”
While there were differences of opinion regarding the course of action that needs to be adopted to counter a serious challenge to the autonomy of the judiciary of the country as per the mandate given by the Constitution of the country but also five experienced luminaries of the apex court had decided on a middle road non-confrontationist approach. The top court had given a clear signal to the executive that pursuing the path of confrontation and standing on false prestige was detrimental and injurious to the country’s democratic polity, hoping that the government would learn a necessary lesson from the ugly episode.
The Modi government was averse to have Justice Joseph as the Chief Justice of Uttarakhand High Court, as he had stuck down the imposition of the presidential rule and had restored the elected Congress government of former Chief Minister Harish Rawat. The SC order had asked the Rawat government to prove its majority through a floor test.
Alas, the Modi government has seemingly refused to learn any lesson from that ugly episode. It appears to have become more vindictive after receiving a huge mandate. In the case of Justice Kureshi, past acts of omission and commission appear to be the culprits. After keeping the SC collegium’s recommendation about Justice Kureshi pending since 10 May while clearing 18 files of judicial appointments, the government’s bias becomes a little too obvious in the light of the communication to the collegium to “reconsider” its recommendation for Justice Kureshi.
Now, the SC has to decide whether to reconsider its earlier recommendation or to reiterate Justice Kureshi’s name.
While nothing official is in the public domain yet, the most cited reason for delaying the elevation of Justice Kureshi, according to the PIL filed by the GHCAA in the Supreme Court on 3 July 2019, is political. In 2010, Justice Kureshi had reversed a special CBI court’s order in the famous Sohrabuddin Sheikh encounter case and remanded today’s Union Home Minister Amit Shah in two days of police custody and again in 2012 he had upheld Gujarat Governor Kamla Beniwal’s decision to appoint a state Lokayukta without consulting the council of ministers.
While suggestion from some quarters cite that since both Justice Joseph and Justice Kureshi hail from minority communities, may not hold ground. In fact on a close scrutiny, vindictiveness surely seems to be influencing the government’s decision as the facts seems to bear out.
Judiciary today stands at a crucial crossroad. Today it stands seriously disrupted. If some immediate concrete steps are not promptly taken to arrest the burgeoning distrust between the two autonomous wings of the democratic polity, there is every danger of its possible destruction.
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Satish Misra was Senior Fellow at ORF. He has been a journalist for many years. He has a PhD in International Affairs from Humboldt University ...
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