Justice K: Justiciable?
Is the "system" responsible for sabotaging another man's career?
Justice Akil Abdulhamid Kureshi was born in 1960 to Hamid Kureshi, a senior advocate and trustee of the Sabarmati Ashram Preservation and Memorial Trust. Following in his father's footsteps, Justice Kureshi practiced law for 20 years before being appointed as an Additional Judge of the Gujarat High Court in 2004 and, later, as the Chief Justice of Tripura High Court in 2019. The controversy here is that a qualified judge who was 2nd on the All-India Seniority List, Justice Kureshi, was not included in the Collegium's list of new Supreme Court judges. Nonetheless, this wasn’t the first time he had been treated improperly during the promotion process, nor is it the first time that a judge's advancement had been halted.
The ‘apolitical’ body’s Collegium released a list recommending 9 new judges for the Supreme Court which raised questions on the judicial system’s independent working. The Collegium chose to take the easy route, breaking their constitutional oath and disregarding the Constitution Bench's decision on appointments to the High Courts and the Supreme Court.
It was seen that seniority, which is and has always been the most important criteria for the appointment, was not the deciding factor for the elevation process as Justice Bela M. Trivedi and P. S. Narasimha, were unexpectedly included in the list.
The Collegium System permits the Chief Justice to speak with the Supreme Court's four most senior judges before making any recommendations to the President, allowing a college of people to appoint judges prior to the final appointment.
The Justices are to be appointed proportionately, which means that each state is only allowed to send in an authorized number of judges to make up the body of 33 judges. Justice Kureshi and Justice Bedi were both from the Gujarat judiciary, but the former Judge of Patna High Court, Mukesh Shah had already occupied one of the two seats, preventing Justice Kureshi from being promoted.
The Bharatiya Janata Party has had an issue, more like a vendetta, with Justice Kureshi since 2010.
This was because in 2010 Kureshi had sent Amit Shah into police custody for two days in the Sohrabuddin Sheikh Encounter Case. Furthermore in 2012, he upheld the Gujarat Governor’s decision to appoint a Lokayukta in the state which the then Modi led government failed to do for eight years.
The Centre seemed to take an issue with Justice Kureshi being appointed to serve as the Acting Chief Justice of the Gujarat High Court, and instead appointed Justice AS Dave.
This had defied all expectations. Even the Collegium expressed displeasure with it and informed the Centre. The Centre subsequently issued a new notification designating Justice Kureshi as Acting Chief Justice of the Gujarat High Court, albeit for only two weeks before he was sent to the Bombay High Court as a judge.
On the 10th of May 2019, the Collegium recommended Justice Kureshi’s elevation as the Chief Justice of Madhya Pradesh High Court but all of a sudden on the 5th of September the Collegium withdrew this recommendation as “two communications and accompanying material” were received from the government which led to its reiteration and modification.
During the time period of 4 months, the Gujarat High Court Advocates Association filed a writ petition in the Supreme Court under Article 32 of the Constitution of India against Centre stepping over the Collegium's proposal to make Justice Kureshi the Chief Justice of Madhya Pradesh. Many senior judges, lawyers and bar members appeared for the GHCAA, pleading the case for Justice Kureshi's elevation. The Centre, on the other hand, continued to drag its feet for no apparent reason. Consequently, the Centre accepted the modified plan which appeared to be a type of 'settlement,' and Justice Kureshi has been the Chief Justice of the Tripura High Court since then.
There is a significant elephant in the room when it comes to this new list though, which in fact was cleared barely five days after Justice Rohinton Nariman retired. The reason behind this is that RF Nariman throughout his tenure was eager to elevate Justice Kureshi and resolutely refused to clear any list of recommendations unless they included Justice Akil Kureshi.
People Who’ve Fallen Prey
Justice Kureshi is not the first to fall prey to such political vendettas.
Justice Tahilramani of Madras High Court was transferred to Meghalaya High Court as she had given verdict in the Bilkis Bano Case convicting several Sangh Parivar members and Gujarat Police Personnel to long jail terms.
Justice Jayant Patel resigned from the Karnataka High Court on September 25, 2017, after the Collegium passed him over for nomination as Chief Justice or Acting Chief Justice of the High Court.
Justice Muralidhar, who is not only well known for overturning Section 377 in 2009, but also for issuing critical orders to preserve lives during the Delhi Riots in February 2020, was transferred before he could attend the hearing of the case of BJP leaders against whom he asked the Delhi Police to file FIRs during the Delhi Riots.
An independent judiciary is of utmost importance for liberty. Despite the fact that the Supreme Court and the High Courts are "guardians of a democracy's most precious asset, the people's rights," it is evident how they have become politicized over time. Not having Justice Kureshi on the list has ominous overtones, not just because of his merit and seniority, but also because he would have been the first Muslim Supreme Court nominee in a long time, despite his readiness to stand up to Amit Shah and Modi. However, if the Centre is not perceived as sympathetic to Justice Kureshi, many in the legal community doubt the judiciary's "reluctance" to oppose him. Before blaming the administration for not appointing a judge, one must inquire as to why the name was never provided to the judiciary.
The concern here is whether the government interferes with judicial decisions to assist its own corrupt practices. How is our political system effective, if it yields to politics so easily?
~ Ashhar Hassan