The Gujarat High Court Advocates Association has filed a writ petition in the Supreme Court under Article 32 of the Constitution of India against Centre sleeping over the SC collegium's proposal to make Justice Kureshi the CJ of MP HC.
Justice Kureshi's proposal was made by the SC collegium on May 10 to fill the vacancy created by the retirement of the former CJ of MP HC Justice S K Seth.
Although another proposal made by the Collegium on the same day - that of Justice D N Patel's appointment as Delhi High Court Chief Justice - was notified by the Centre within two weeks, Justice Kureshi's file has been kept pending. Meanwhile, Centre notified the appointment of Justice Ravi Shanker Jha as the Acting CJ of MP HC on June 7.
"Till the date of filing of the present writ petition, the Council of Ministers have advised the President in terms of the recommendations of the Collegium dated 10.05.2019 except for the recommendation of Justice Akil Kureshi for his elevation as the Chief Justice of Madhya Pradesh High Court. All Hon'ble Judges who were recommended for the office of the Chief Justices of respective High Court are now functioning as the Chief Justices of the said High Courts".
The Government instead of issuing notification in terms of the recommendation of the Collegium of High Court dated 10.05.2019, on 07.06.2019 appointed Mr Justice Ravi Shankar Jha, senior most judge of the Madhya Pradesh High Court as the Acting Chief Justice of the Madhya Pradesh High Court with effect from 10.06.2019.
The petition seeks to direct the Centre to notify the appointment of Justice Kureshi as CJ of MP HC immediately. The Centre's selective neglect of Justice Kureshi's file is sought to be highlighted in the petition by pointing out that it has cleared 18 files of judicial appointments after May 10.
On June 25, the Association had passed a resolution approving the decision to approach SC through writ petition to challenge what it believes to be "purposeful holding back " of approval of Justice Kureshi's appointment.
The resolution came after Senior Advocate Yatin Oza, the President of the Association, informed the association members that the Union Law Minister Ravi Shankar Prasad was not willing to meet a delegation of Gujarat lawyers to discuss the subject.
The Association had earlier passed a resolution on June 10 deciding to meet the Law Minister on this issue.
"In addition to the written representation, the Petitioner made several efforts to contact the Hon'ble Law Minister via phone calls. As efforts to make a personal representation before the Hon'ble Law Minister did not succeed, on 25.06.2019, the members of the Petitioner resolved to approach this Hon'ble Court by way of a writ petition under Article 32 of the Constitution of India", states petition.
Justice Kureshi, a senior judge of Gujarat High Court, was transferred to Bombay High Court last October, amidst protests from the bar. The Gujarat High Court Advocates Association had moved a resolution protesting Justice Kureshi's transfer as motivated by 'extraneous considerations'. Senior Advocate Yatin Oza, the President of the GHCAA, had announced the decision of the bar to resort to indefinite strike over the transfer of Justice Kureshi. This was later withdrawn after CJI Ranjan Gogoi met the representatives of Association.
Judgments by Justice Kureshi
Many bar members share the belief that Justice Kureshi is being sidelined due to the adverse orders passed by him against the ruling dispensation.
In 2010, Justice Kureshi gave custodial remand of Amit Shah to CBI in the Shorabuddin case by setting aside the order passed by a Magistrate which rejected CBI's plea for remand. He also rejected the defence plea for videography of Shah's questioning during the CBI custody.
His 2012 order in the case concerning appointment of Justice R A Mehta as Gujarat LokAyukta had caused huge embarrassment to the Gujarat Government. The Government opposed the Lok Ayukta appointment made by the Governor Kamla Beniwal on ground that it was made without the concurrence of Government. Justice Kureshi held that Governor was acting as an independent statutory authority under the Lok Ayukta Act, and therefore there was no requirement of seeking concurrence of Government. His colleague in the bench, Justice Sonia Gokani, dissented. Due to the split verdict, the matter was referred to a third judge- Justice V M Sahai- who concurred with the view expressed by Justice Kureshi. Taking the matter as a prestige issue, the Gujarat Government appealed before the Supreme Court, but met with no success as the top court upheld the majority judgment of High Court.
In 2016, there was an attempt to cause his recusal from hearing the appeal against the conviction of Maya Kodnani(who was a minster in the Modi government in Gujarat) and few others in the Naroda Patiya massacre case, when a senior lawyer related to Justice Kureshi entered appearance for one of the parties in the last minute and sought his recusal. "When the appearance is made by the senior advocate at late a stage, we wonder would it not have been better if the advocate had recused rather than to request the court to do so", Justice Kureshi stated in the order of recusal. He expressed his anguish at the episode by saying "It is very painful. We will not say anything but it tarnishes the image of the institution and confidence of people… this should not have happened."
In May 2018, a bench headed by him upheld the conviction of 19 Accused persons in the post-Godhra riots in Oad, where 23 people including women and children were burnt alive by a mob in March 2002. These phenomena which we often describe as communal frenzy turn perfectly normal human beings momentarily into murderous monsters leaving nothing but trail of death and destruction for the victims and his own family alike", Justice Kureshi stated in his judgment.
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