Thursday, June 20, 2019

Troubling Questions: Does Centre's Refusal to Elevate Justice Kureshi Have Amit Shah Connection?

Of four recommendations made by the Supreme Court collegium, the Centre decided not to approve only Justice Kureshi's elevation. Centre's Refusal to Elevate Justice Kureshi Raises Troubling Questions
Justice A.A. Kureshi. Photo: LiveLaw

After assuming office as Union law minister following the renewed mandate received by the Narendra Modi government at the Centre, Ravi Shankar Prasad asserted that his ministry would not be a “post office”. He was apparently referring to the ministry’s role, after it receives the recommendations from the Supreme Court’s collegium in the matter of appointment of judges to the higher judiciary, as it is an important stake-holder.

While his statement could be interpreted to mean that his ministry would not automatically endorse the collegium’s first picks, and vet each of them, he could well have claimed that his ministry would function as a bin for those recommendations with which it is not in favour.

The Centre’s inaction on the collegium’s recommendation to elevate Bombay high court Justice Akil Abdulhamid Kureshi as the Chief Justice of Madhya Pradesh high court sends ominous signals on how the Modi government is likely to treat the collegium in its second term.

On May 10, the collegium – comprising Chief Justice of India Ranjan Gogoi and Justices S.A. Bobde and N.V. Ramana – recommended that the Centre elevate Justice Kureshi, who is the senior-most judge from the Gujarat high court as the chief justice of the Madhya Pradesh high court. He is currently functioning, on transfer, in the Bombay high court.

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The collegium was keen to elevate Justice Kureshi as incumbent Chief Justice S.K. Seth was to retire on June 9. The collegium found Justice Kureshi suitable in all respects for being appointed as Chief Justice of the Madhya Pradesh HC.
Ravi Shankar Prasad addressing the media in New Delhi on Saturday. Credit: PTI/Kamal Kishore

Centre disregards collegium’s recommendation

In the case of Madhya Pradesh high court, however, the Centre disregarded the collegium’s recommendation to elevate Justice Kureshi and notified the appointment of Justice Ravi Shanker Jha, as the acting Chief Justice with effect from June 10.

The Fat Decimator System

Justice Jha, who is the senior-most puisne judge in the Madhya Pradesh high court, became entitled to be elevated as the ACJ, in view of the Centre’s non-appointment of Justice Kureshi before Justice Seth retired on June 9.

The Memorandum of Procedure (MoP) – which is yet to be revised following the Supreme Court’s direction in the National Judicial Appointments Commission case in 2015 – envisages that the collegium’s recommendation, if reiterated after reconsideration, once as requested by the Centre, is binding on the latter. But does the Centre has an option to sit on the recommendations, without returning those with which it is not in favour, for the collegium’s reconsideration?

But Justice Ravi Shanker Jha’s  appointment can surely be questioned because with the collegium’s recommendation to elevate Justice Kureshi as the Chief Justice, having been made on May 10, a vacancy could not have arisen on June 10 merely because the Centre did not choose to act on it, by notifying his appointment.

Interestingly, MoP envisages appointment of an ACJ under Article 223 only when there is intimation from the incumbent Chief Justice about his or her proceeding on leave or being unable to perform the duties of the office of the chief justice. This intimation, the MoP adds, must be sent to all concerned well in advance to make arrangement for appointment of an ACJ.

The Amit Shah connection 

In the case of Justice Kureshi, it is not just the non-compliance by the Centre with the timeline laid down in the MoP, which causes concern. The Gujarat High Court Advocates’ Association (GHAA) described the appointment of ACJ of Madhya Pradesh high court as a “clearly uncalled for interference by the Executive”. At an extraordinary general meeting, the GHAA passed a resolution to make a “personal representation” to the Union law minister to notify Justice Kureshi’s appointment as the Chief Justice.

Justice Kureshi joined the Bombay high court on November 14, 2018, after the Centre overlooked his claims to be appointed as the ACJ of the Gujarat high court, despite his seniority. 

After the then Chief Justice of Gujarat high court, Justice Subhash Reddy was elevated to the Supreme Court, Justice Kureshi, who was then the senior-most puisne judge of the Gujarat high court was expected to be elevated as the ACJ. Instead, he was transferred to the Bombay high court, and Justice A.S. Dave, the senior-most judge after Justice Kureshi, was appointed the ACJ. 

After the CJI expressed his displeasure over the move, the Centre quickly rescinded its notification, and appointed Justice Kureshi as the ACJ of the Gujarat high court until he took over as the judge of the Bombay high court, within two weeks.
Shah. Image: PTI/Files

The GHCAA President, Yatin Oza, recalled in an article that Justice Kureshi had in 2010 remitted the current Union home minister, Amit Shah to police custody for two days in the Sohrabuddin case.

In 2011, Justice Kureshi upheld the decision of the then governor, to appoint Justice R.A. Mehta as Lokayukta in Gujarat, which was challenged by the Narendra Modi-led Government in the state. Oza was Shah’s lawyer in 2010, and he found nothing wrong in Justice Kureshi’s decision to remand Shah to police custody.

Oza has alleged that the Centre’s inaction in elevating Justice Kureshi as the CJ of the Madhya Pradesh high court amounted to victimisation. The moot question, therefore, is whether the collegium can assert itself and question the Centre’s inaction on its recommendation, if it fails to return it for its reconsideration.

In his latest address, at a conference of Chief Justices at Shanghai Cooperation Organisation at Sochi in Russia, CJI Ranjan Gogoi underlined the importance of strong and independent judges for the independence of the judiciary as an institution. Will he, as the head of the institution, walk the talk?—The Wire (Excerpted)

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