In a surprising move, the Supreme Court collegium has recommended the elevation of Justice Akil Kureshi as the Chief Justice of Tripura High Court, superseding the earlier proposal made on May 10 to elevate him as the CJ of Madhya Pradesh HC.
The SC Collegium said that it was modifying the earlier proposals taking into account the two communications dated 23rd August, 2019 and 27th August, 2019 sent by the Department of Justice on the proposal.
The Collegium of CJI Ranjan Gogoi, Justices Bobde and Ramana said in the resolution dated September 5 as follows :
"This Collegium vide Minutes dated 10th May, 2019 recommended that Mr. Justice A.A. Kureshi, senior-most Judge from Gujarat High Court be appointed as Chief Justice of the Madhya Pradesh High Court.
The said recommendation sent to the Government has been referred back to the Chief Justice of India vide two communications dated 23rd August, 2019 and 27th August, 2019 received along with accompanying material. These communications and material received from the Department of Justice have been placed before this Collegium.
On reconsideration and after taking into account the aforesaid two communications dated 23rd August, 2019 and 27th August, 2019 and the accompanying material, the Collegium resolves to reiterate its earlier recommendation dated 10th May, 2019 with the modification that Mr. Justice A.A. Kureshi be appointed as Chief Justice of the Tripura High Court."
Justice Kureshi's elevation had become a subject of controversy after the Gujarat High Court Advocates Association filed a writ petition in the Supreme Court, alleging Central Government of selectively blocking his elevation due to extraneous considerations. While hearing the petition, the SC had said on September 16 that a decision has been taken on the Justice Kureshi's elevation and that it will be published soon.
The GHCAA had urged the SC to direct the Centre to notify the recommendation of Justice Kureshi. They pointed out that another proposal made by the Collegium on the same day (May 10) - that of Justice D N Patel's appointment as Delhi High Court Chief Justice - was notified by the Centre within two weeks but 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.
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.
Justice Kureshi, a senior judge of the Gujarat High Court, was transferred to Bombay High Court last October, amidst protests from the GHCAA.
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.