[dropcap]T[/dropcap]HE Bombay Bar Association (BBA) today passed a unanimous resolution strongly disapproving the Supreme Court Collegium’s manner of decision-making on the elevation of Justice AA Kureshi as Chief Justice of the Tripura High Court and the modification of earlier recommendation at the behest of the Government of India.
“The modification of the Collegium’s recommendation in the case of Justice AA Kureshi, at the behest of the Government undermines the independence of the judiciary and would have an adverse effect on the functioning of the judiciary as a whole and the ability of judges to discharge their constitutional functions without fear or favour,” resolution read.
Apprehending the “opaque procedure” adopted by the Collegium relating to the elevation of Justice Kureshi as Chief Justice, it went on to add, “This Association believes that the disclosure of reasons behind the Collegium’s recommendations (and any modifications thereof) is necessary, and would subserve the interests of the judiciary and the administration of justice”.
“This Association further strongly disapproves the manner in which the Government has interfered with the Collegium’s decision-making in respect of the appointment of Justice AA Kureshi in particular and appointments, elevation or transfer of Judges in general thereby threatening the independence of the judiciary”, the resolution said.
The Collegium in its meeting held on September 5, had modified its earlier recommendation to appoint the senior-most Judge from Gujarat High Court Justice Kureshi as Chief Justice of Madhya Pradesh High Court.
Justice Kureshi is presently a judge in the Bombay High Court.
The Collegium resolution dated September 5, which had been made public after 15 days of modifying the recommendation, read: “The said recommendation sent to the Government has been referred back to the Chief Justice of India vide two communications dated 23rd August 2019 and 27th August 2019 received along with accompanying material. These communications and material received from the Department of Justice have been placed before this Collegium.”
It added: “On reconsideration and after taking into account the aforesaid two communications dated 23rd August 2019 and 27th August 2019 and the accompanying material, the Collegium resolves to reiterate its earlier recommendation dated 10th May 2019 with the modification that Mr Justice A.A. Kureshi be appointed as Chief Justice of the Tripura High Court”.
The Supreme Court Collegium on May 10 had made five recommendations in separate files related to the appointment of the Chief Justices of the High Courts of Madhya Pradesh, Telangana, Himachal Pradesh and Delhi. The Collegium had also recommended the names of two advocates for elevation as judges of the Madhya Pradesh High Court.
The central government had already given effect to all the recommendations of the Collegium barring the one appointing Justice Kureshi as the Chief Justice of the Madhya Pradesh High Court. It even notified the appointment of Justice Ravi ShankerJha, as acting Chief Justice of Madhya Pradesh High Court on June 7, 2019.
Aggrieved with the inaction of the Central government to give effect to the Collegium’s recommendation to appoint Justice Kureshi as the Chief Justice of the Madhya Pradesh High Court, a Public Interest Litigation (PIL) petition filed by the Gujarat High Court Advocates Association (GHCAA) seeking a direction to the Central Government to notify the appointment of Justice AkilKureshi as the Chief Justice of the Madhya Pradesh High Court as per the recommendation of the Supreme Court Collegium on May 10, 2019.
The petitioner, the GHCAA, had submitted in the apex court that the inexplicable failure on the part of the Centre to appoint Justice Kureshi amounts to a refusal to follow the procedure laid down in the Memorandum of Procedure (MoP). This inaction on the part of the Central Government, the petitioner has said, amounts to a violation of Articles 14 and 217 of the Constitution.
To buttress their argument, the GHCAA has relied on the Supreme Court’s decision in Supreme Court Advocates-on-Record Association and another vs Union of India (known as ‘second judges’ case of 1993) where the apex court had held that the Chief Justice of India’s opinion would have primacy in the appointment of judges.
The Central Government had been dragging its feet on the appointment of Justice Kureshi as the Chief Justice of the Madhya Pradesh High Court. On June 10, 2019, the GHCAA had resolved to form a committee of ten advocates to meet the Union Law Minister to press for a notification to enforce the Collegium’s recommendation.
“..to the utter shock and surprise of the Bar, Justice AkilKureshi was not appointed as Chief Justice of Madhya Pradesh HC on May 22, 2019, along with Justice DN Patel as Chief Justice of Delhi HC and instead, Justice Ravi ShankerJha was appointed as Acting Chief Justice of the Madhya Pradesh HC with effect from June 10. This is clearly uncalled for interference by the executive,” the GHCAA had said in its resolution on June 10, 2019.
As a judge in the Gujarat High Court, Justice Kureshi had remanded the Bharatiya Janata Party chief and current Home Minister, Amit Shah to police custody for two days in the Sohrabbuddin murder case and in 2011, had also upheld the decision of the Governor to appoint Justice RA Mehta as Gujarat’s Lokayukta, a move that was challenged by the then Narendra Modi-led government in the state.
In November 2018, when the then Chief Justice of Gujarat High Court R Subhash Reddy was elevated as a judge to the Supreme Court, Justice Kureshi, who was the senior-most judge after Justice Reddy, should have assumed the Chief Justice’s office as a matter of practice. However, he was transferred to the Bombay High Court and made the number four-judge there, pursuant to the Supreme Court Collegium’s recommendation.
The GHCAA had at that time opposed the decision of the Collegium and had gone on a day-long strike, following which, Justice Kureshi was appointed the Acting Chief Justice of the Gujarat High Court for two weeks until his date of joining the Bombay High Court.
The petition filed by GHCAA is pending in the Supreme Court.