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'Whether There Should Be A Time Frame For Govt. In Implementing Collegium Recommendations?'SC Keeps The Question Open

Mehal Jain
13 Nov 2019 6:26 AM GMT
Whether There Should Be A Time Frame For Govt. In Implementing Collegium Recommendations?SC Keeps The Question Open

The Supreme Court on Wednesday took note of the Central government notification elevating Gujarat High Court Justice Akil Kureshi as the Chief Justice of the Tripura High Court.

Disposing off a petition by the Gujarat High Court Advocates Association in the same behalf, the bench headed by Chief Justice Ranjan Gogoi, however, left alive the question of whether there should be a definite time schedule to be followed by the government in effecting collegium recommendations.

A written submission was advanced on behalf the petitioner-association regarding stipulating a time-frame for the government to act on matters of appointments, elevation and transfer of judges as recommended by the Collegium.

After months of uncertainty, the Central Government finally cleared the Supreme Court Collegium's proposal to elevate Justice Akil Abdulhamid Kureshi as the Chief Justice of Tripura High Court,

On September 5, the Supreme Court collegium had recommended his elevation as the Chief Justice of Tripura High Court, modifying the earlier proposal made on May 10 to appoint him as the Chief Justice of Madhya Pradesh.

The reasons for this modification were not cited in the Collegium resolution, which merely said that the decision was taken on the basis of two communications received from the Centre and accompanying material.

Even this modified proposal was kept pending by the Centre, although it had cleared several other recommendations which were made after the Collegium's decision on Justice Kureshi.

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 the 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.

When the case was posted after the publication of the September 5 resolution, the Court accepted the request made by Senior Advocate Arvind P Datar for GHCAA to keep the matter pending till Centre notifies the recommendation.

The Gujarat bar, especially the senior members, have been expressing their support for Justice Kureshi. Senior Advocates of the Gujarat bar Yatin Oza, Mihir Thakore, Percy Kavina etc were present in the Supreme Court on most days of hearing, when Senior Advocate F S Nariman was making submissions for the GHCAA.

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 Shankar Jha as the Acting CJ of MP HC on June 7. Even after that, several judicial appointments were cleared by the Centre.

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."

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