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JUSTICE AKIL KURESHI -SUFFOCATING JUDICIAL ASPIRATIONS

Author: Khushi Kumari, IV year of B.A.,LL.B.(Hons.) from Narsee Monjee Institute of Management Studies, Indore


Abstract

“Judicial Independence”, these two words together hold a lot of importance when it comes to the body which delivers justice to the people and safeguards their rights in the society. They have been put into double inverted commas because in the contemporary India, these words have lost the importancefor those who crave for power and dominance in the government system.


Sir John Dalberg-Acton has rightly said that – “Power tends to corrupt, and absolute power corrupts absolutely”. It means that whenever a person tends to have power over others, it makes him filled with destructive pride and destroys his nature while corrupting him. The evidence of the same can be taken from the present Modi government, which suffocates aspirations of those who deny to be flattery for them.


The oath of the Judiciary states that – “I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”.[i]Therefore, it is the duty of the judiciary to deliver neutral and fair decisions without getting influenced and hence, deliver justice to the ones before them.And it is duty of the Judicial organ to safeguard the Constitution of India being the interpreter of the same. And when an organ is entrusted with such paramount work, it is important that its independence is secured so as to enable it with power to work remaining impartial and serve the constitutional goals. But complications arise when the executive and legislative wing of the government tries to interfere with the judicial wing of the government.


This article aims at studying the case of Justice Akhil Kureshi in light of judicial appointments in India and tries to analyse the reality of judicial independence in India.


Brief Journey into the Judicial Appointments

The collegium systemhas been adopted for the appointment of the judges of the High courts and the Supreme Court. This system is not prescribed by any law, it is rather present due to judicial precedents. After a series of cases, which were decided in 1998 in the Three Judges case, it was finally established that the judges of the High Court & Supreme Court are to be appointed by a group of judges headed by the Chief Justice of India.[i] It is prescribed that the President of India or the Governor shall be consulted by the Chief Justice, who is not obliged to agree with their opinion(s).


In 2015, the Apex Court re-affirmed the Collegium system when the National Judicial Appointments Commission Act i.e. NJAC was struck down. This was done as the Supreme Court felt that voting powers conferred to the political members of the proposed commission by the act is violating the ‘principle of judicial independence’. Keeping the political members away from the judicial appointments was to maintain the judicial independence but the Indian judiciary still fails to keep its independence intact even by preserving the collegium system.


Under the present Collegium system, the names recommended by the collegium reaches the government for their approval, who can raise objections or seek clarifications regarding the names suggested for the appointment of judges in the High Court and the Supreme Court.


The journey of Judicial appointments in India by the Collegium is not a full-proof system. This Collegium system is often criticized on the grounds such as – it has scope for nepotism, there is a lack of transparency, presence of opaqueness and the fact that lot of talented advocates and judges are often overlooked. And when some kind of power is given to the government, they try to use it for their own advantage by suppressing them who goes against them, which is again tampering with the Judicial independence.


Case Study of Justice Akil Kureshi

In 2004, Justice Akil Kureshi was appointed as a judge of the High Court of Gujarat, where he served till November 2018. After that he was transferred to the High Court of Bombay. The Supreme Court Collegium on May 19, 2019 recommended his name for appointment as the Chief Justice of the High Court of Madhya Pradesh, along with this, the collegium also recommended the names of other three judges to be appointed in office of Chief Justice of Telangana High Court, Delhi High Court and Himachal Pradesh High Court.


When these names were sent to the Modi government, they on May 22, 2019 issued a notification for appointment of all the recommendations by the Collegium, except for Justice Akil Kureshi. The recommendation for appointment of Justice Kureshi was turned down by the government, which also asked the collegium to review its decision. This doesn’t end here, the Union Government then appointed Justice Ravi Shanker Jha on the position of Chief Justice of Madhya Pradesh High Court. After this incident, the Gujarat High Court Advocates Association (GHCAA) on July 3, 2019 moved to the Supreme Court through a PIL,[ii] in which the court was requested to direct the Union Government to appoint Justice Akil Kureshi as the Chief Justice of the Madhya Pradesh High Court.


One may think that why only appointment of Justice Akil Kureshi was stalled by the government? Well, the reason involves politics. Justice Kureshi in 2010 reversed the decision of the Special CBI court in the Sohrabuddin Sheikh encounter case and the Home Minster Amit Shah, belonging to the party of Narendra Modi was remanded a two-day police custody. Also, in 2011, Justice Kureshi headed Bench appointed RA Mehta as the state’s Lokayukta by upholding Gujarat governor Kamla Beniwal’s decision, which was opposed by the Narendra Modi Government. Justice Kureshi acted upto his duties and responsibilities and gavethe order to serve justice, but the government by overlooking a well-deserved judges’ appointment found a way to get back at him crushing his aspirations.


This was not the first time that Justice Kureshi was overlooked, even in 2018 when there was a vacancy in the office of the Chief Justice of the High Court of Gujarat, his seniority should have placed him at that position,but he was transferred to the Bombay High Court. At the said position, a junior judge was appointed as the Acting Chief Justice of the High Court of Gujarat.


The case came to an end after the collegium recommended Justice Akil Kureshi as the Chief Justice of the High Court of Tripura on September 5, 2019. And hence, the case was disposed of by the Supreme Court on November 13, 2019 after the Union Government notified his appointment.


What has happened here is thatJustice Kureshi was denied the justice he deserved, just because he decided to be faithful to his job and tried to maintain the piousness and sanctity of the judiciary.It is an established fact that Tripura High Court is a smaller court when compared to the Madhya Pradesh High Court and in this way, the Modi government took revenge from Justice Akil Kureshi.


Inference

Justice Akil Kureshi was neither the first nor the last victim of the Government’s arm twisting. There were many judges whose judicial aspirations were suffocated and whose careers were crushed because the government decided to teach them a lesson for the wrong they never did. Their fault was that they did not break their judicial oath of ‘acting without fear and favour’. The list of judges includes – Justice P.K. Krishna Bhat (whose recommendation was stalled on the charges of sexual harassment, due to this, his seniority got affected), Justice K M Joseph (denied his elevation to Supreme Court), Justice S. Muralidhar (transferred from Delhi High Court to Punjab High Court because he was opposing the government), Justice Saurabh Kirpal (denied for being appointed as Delhi High Court’s judge because he belonged to the LGBTQ community), and many others. In many of these cases, even after all the resistance of the government, when these judges were appointed to their rightful posts, complete justice was not served to them as their seniority was affected due to their late appointments. Therefore, many of them could not fulfill their aspiration of becoming the Chief Justice of India.


How will justice be served in the court of law by the appointed judges if they themselves fear about their career and present position?They will always fear that if they go against the government, politics might find its space and they might get transferred or their recommendations by the collegium might get stalled. Here, the victim is not just the judicial aspirations of the person, rather a more imminent threat is upon the ‘judicial independence’ and ‘quality of judgments delivered’ by the judiciary.


The present collegium system establishes an abrupt and opaque process of one judge appointing other judge, where government can interfere and disrupt the process, which is still continuing in the present times. Adopting a good procedure and fair process for appointment of judges in the Indian judiciary is vital for upholding the judicial independence and true values of constitutionalism. One of the basic characteristics of our Constitutional framework is the independence of judiciary from the influence of executive and legislature. But the present collegium system does not ensure integrity and transparency in the appointment process, which needs to be revived and the spirit and basic structure of Constitution needs to be kept intact.

[i]Medha Srivastava, Does the Collegium System Ensure Independence of Indian Judiciary, THE LEAFLET (November 25, 2020), https://www.theleaflet.in/. (Accessed on September 16, 2021) [ii]Gujarat High Court Advocates Association v. Union of India, WP (C) 841/2019 (India).

[i]Third Schedule, https://www.mea.gov.in/Images/pdf1/S3.pdf. (Accessed on September 16, 2021)

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