Breaking: Gujarat Bar moves Supreme Court on Centre’s refusal to clear transfer file of Justice Akil Kureshi

The Gujarat High Court Advocates Association has moved the Supreme Court taking objection to the Central government’s reluctance to appoint Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court.

In a petition filed through advocate Purvish Malkan, the GHCAA has prayed that a direction be issued to the Central government to implement the Collegium resolution of May 10, 2019 and appoint Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court.

In March this year, the Supreme Court Collegium had recommended that Justice Kureshi be appointed as Chief Justice of the Madhya Pradesh High Court.

Further, on the day before the declaration of the 2019 general election results, the Centre issued twelve notifications clearing appointments of judges to various High Courts and the Supreme Court. This included four appointments to the Supreme Court and two appointments as Chief Justices to High Courts of two states.

However, there was no notification clearing the name of Justice Akil Kureshi for appointment as Chief Justice of the Madhya Pradesh High Court.

Things escalated when on June 7, the Centre notified the appointment of Justice Ravi Shanker Jha as Acting Chief Justice of Madhya Pradesh High Court, thereby signalling that it had no intention to clear the file of Justice Kureshi.

In its petition, the GHCAA has pointed out that all the recommendations of the Supreme Court Collegium were carried out and only the recommendation appointing Justice Akil Kureshi as the Chief Justice of the Madhya Pradesh has not been acted upon by the Centre.

The petition states that eighteen other additional judges of different High Courts were appointed after May 10, 2019.

The petitioner has contended that the inexplicable failure on the part of the Centre to appoint Justice Kureshi is tantamount to a refusal to follow the procedure laid down in the Memorandum of Procedure (MoP). Failure to follow the MoP and appoint Justice Kureshi is in violation of Articles 14 and 217 of the Constitution, the petitioner submits.

It is also in the teeth of the law laid down by the Supreme Court in the Second judges case, the petition states.

It is further stated that the inaction on the part of the Centre is an attack on the independence of the judiciary and diminishes the primacy of the judiciary in the matters of appointment and transfer of judges to the High Courts and the Supreme Court.

Importantly, the petitioner has submitted that the only role ascribed to the Centre as per the Second Judges Case and the MOP as far as the appointment of the Chief Justice of the High Court is concerned, is to elicit the views of the State Government with respect to the concerned judge.

In this respect, the Union Minister of Law can only convey the views of the state government to the Chief Justice of India. In no circumstances can the Union Minister withhold the advice to the President as it will amount to arbitrary action, the petitioner submits.

The petitioner has made the following prayers:

• Issue a direction to the Central government to comply with Article 217 of the Constitution of India read with Paragraph 6 of the “Memorandum of Procedure and implement the Collegium recommendation of Supreme Court dated May 10, 2019 recommending appointment of Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court;
• Issue a direction the Central government to comply with paragraphs 5 and 6 of the Memorandum of Procedure within a period of six weeks with respect to all future appointments of Chief Justices of various High Courts.

This is not the first controversial instance relating to the Central government’s treatment of Justice Akil Kureshi.

Kureshi J, the seniormost judge of the Gujarat High Court, was transferred to the Bombay High Court in November last year.

At the time, confusion had reigned after it was revealed that Justice AS Dave – less senior to Kureshi J – would be appointed as Acting Chief Justice of the Gujarat High Court after Justice Subhash Reddy’s elevation to the Supreme Court.

At the same time, Justice Kureshi was transferred to the Bombay High Court, even as the Gujarat Bar reacted strongly against this move. Eventually, Justice Kureshi served as Acting Chief Justice of the Gujarat High Court for a short period, before he assumed his duties at the Bombay High Court.

GHCAA President Yatin Oza had lashed out at the Central government, saying that Justice Kureshi was being singled out for an order passed by him in 2010, remanding current Union Home Minister Amit Shah to police custody.