The last days of an upright judge, writes Olav Albuquerque

Monday was the last day in the office for former Chief Justice of the Rajasthan High Court, Akil Abdulhamid Kureshi, who ought to have been elevated to the Supreme Court because he was second in the all-India seniority list of judges and there appeared no adverse report remotely questioning his integrity which ever entered the public domain. Unlike another former Chief Justice of the Madras High Court, Vijaya Kapse Tahilramani; who allegedly illegally bought an immovable property in Chennai, if the 46th CJI, Ranjan Gogoi, is to be believed.

Speaking at the event to mark his last day in office, the former Chief Justice said the negative perception of the government about his judicial opinions – whatever that might mean- was a certificate of his “judicial independence.” He explained that what was vital to him was the perception of the judiciary, which was never officially communicated to him. This implies the judiciary did not share the perception of the government about Justice Kureshi’s integrity and competence but could do nothing about it.

Justice Kureshi was responding to the remarks made by former Chief Justice of India (CJI) Ranjan Gogoi in his autobiography, Justice for the Judge on page 83 where the then Law Minister; Ravi Shankar Prasad, in an official letter dated August 23, 2019 “expressed the objection of the Union government” to the collegium’s recommendation(of Justice Kureshi) as the Chief Justice of the Madhya Pradesh High Court. To quote the former CJI Gogoi again, “The objection was based on a negative perception flowing from certain judicial orders passed by Justice Kureshi.”

Gogoi confessed in his book that it would have done nobody any good if the objection of the government to Justice Kureshi’s elevation as Chief Justice of the large Madhya Pradesh High Court had come into the public domain because Justice Kureshi had several years of service left. This was why Gogoi requested a senior judge of the Supreme Court to take up the matter with the government “to avoid a confrontation.” Gogoi then went on to add that “the collegium’s recommendation for Justice Kureshi as the Chief Justice of the Madhya Pradesh High Court was modified to appoint him as the Chief Justice of the Tripura High Court instead of on November 8, 2019.”

What emerges from all this is the government can block the Supreme Court collegium’s selection of judges. From media reports, it has become obvious that a stalwart like Justice Rohinton Nariman was adamant about Justice Kureshi’s elevation to the Supreme Court when he was a senior member of the collegium. Justice Nariman is reported to have said that it was over his dead body that judges junior to Justice Kureshi would be elevated. But after Justice Nariman retired, the collegium succumbed to the government diktat to overlook Justice Kureshi for elevation to the Supreme Court.

It is true the nine judges who were elevated to the Supreme Court have merit but two vacancies were left unfilled in the Apex court, one of which could have easily been filled by Justice Kureshi. From a financial perspective, Justice Kureshi has suffered to some extent because all the Chief Justices of the 24 High Courts draw the same emoluments as a Supreme Court judge but retire at the age of 65 years instead of 62 years.

It was in 2018, that the government overlooked Justice Kureshi’s seniority to appoint Justice Anil Dave as Chief Justice of the Gujarat High Court which would have humiliated him. After protests from the Gujarat Bar, the government withdrew the notification but Justice Kureshi was acting Chief Justice of the Gujarat High Court for just two weeks before he was transferred to the Bombay High Court where he was much lower in seniority. After his transfer to the Bombay High Court, the collegium recommended that Justice Kureshi be sworn in as Chief Justice of the Madhya Pradesh High Court.

Again, the government blocked the collegium’s recommendation for Justice Kureshi to be sworn in as Chief Justice of the Madhya Pradesh High Court. The collegium succumbed and shunted Justice Kureshi as Chief Justice of the minuscule Tripura High Court. When he was second in seniority on the All India List of Seniority of Judges, all appointments to the Supreme Court were stalled because the government was not keen on his elevation while a senior collegium member Justice Rohinton Nariman would not have judges junior to Justice Kureshi elevated to the Supreme Court.

That the Gujarat Bar went on an indefinite strike and filed a petition in the Supreme Court when he was shunted to the Bombay High Court is a tribute to him. And just like the late Justice H.R. Khanna sacrificed his career for standing up to the Indira Gandhi government during the Emergency, so it appears at least prima facie, former Chief Justice Kureshi was made a sacrificial lamb for standing up to the government of the day. Former President of the Supreme Court Bar Association, Dushyant Dave agreed that Justice Kureshi oughtto have been elevated.

Former collegium member, Justice Jasti Chelameshwar, told the Free Press Journal he would not like to comment on why Justice Kureshi was overlooked because he had retired in 2018 and was not aware of the facts. Indeed, integrity is not the only criterion for being considered a competent judge because there were no adversere ports about Justice Pushpa Ganediwala’s integrity. Still, the collegium headed by the former CJI Sharad Arvind Bobde recalled their recommendation for her confirmation because of three successive acquittalsof alleged child molesters under the Prevention of Children from Sexual Offences Act on the ground there was no skin-to-skin contact.

Demoting a judge to his earlier post is a rare phenomenon although there have been precedents like a magistrate from Goa, Narayan Surendra Amonkar, who was elevated as an assistant sessions judge and then reverted to being a magistrate- cum- civil judge senior division. After his demotion, this Goan judicial officer had to face the ignominy of seeing all his juniors supersede him to the district and sessions court in Goa. He may have been incompetent as an assistant sessions judge but not corrupt.

But Justice Kureshi’s judgments against the government meticulously conform to the law which is why the Supreme Court did not have to modify or strike down any of his judgments. Judges like Justice Kureshi deliver justice to the people but have to meekly accept injustice to themselves.

(Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate of the Bombay High Court)

Published on: Friday, March 11, 2022, 08:42 AM IST