[dropcap]T[/dropcap]HE Gujarat High Court Advocates Association (GHCAA) has filed a writ petition in the Supreme Court seeking a direction to the Central Government to notify the appointment of Justice Akil Kureshi as the Chief Justice of the Madhya Pradesh High Court as per the recommendation of the Supreme Court Collegium on May 10, 2019.
The Supreme Court Collegium on May 10, 2019 had made five recommendations in separate files relating 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 elevations as judges of the Madhya Pradesh High Court.
The Central Government has 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 Shanker Jha, as acting Chief Justice of Madhya Pradesh High Court on June 7, 2019.
It is, however, not clear whether the Centre has sought the reconsideration of the Collegium’s recommendation regarding Justice Kureshi, or that it has withheld the recommendation altogether.
The petitioner, the GHCAA, has 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 upon theSupreme Court’s decision in Supreme Court Advocates-on-Record Association and another vs Union of India (known as ‘second judges’ case of 1993)wherein the apex court had held that Chief Justice of India’s opinion would have primacy in the appointment of judges.
The Central Government has 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 Akil Kureshi 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 Shanker Jha 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.
Justice Kureshi is presently a judge in the Bombay High Court with the Gujarat High Court as his parent high court.
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.