Why Justice Kureshi's Omission from Collegium List Raises Questions

The recent omission of Justice Akil Abduhamid Kureshi – one of the seniormost high court chief justices in the country – from the list of nine chief justices and judges of various high courts, cleared on August 18 by the Supreme Court collegium headed by CJI N.V. Ramana, continues to make headlines.

Justice A.K. Kureshi had remanded Amit Shah (now Union Home Minister) in the custody of the Central Bureau of Investigation (CBI) in the alleged fake encounter of Sohrabuddin Sheikh,cac over a decade ago, in 2010.

The elevation of Justice Kureshi had become a cause for concern in November 2018, when the Gujarat High Court Advocates Association had called for a strike to protest against his transfer to the Bombay High Court. Kureshi is said to be held in high regard by the Gujarat Bar Council and his transfer to Mumbai – at a time when he was about to be the Acting Chief Justice of the Gujarat High Court – where he would be the fifth-most senior judge, caused much consternation and whispers that the powers that be were at work.

In May next year, the apex court's Collegium recommended Justice Kureshi's elevation to the post of Chief Justice of the Madhya Pradesh High Court. However, his name is said to have been "selectively" held back as other chief justices whose names were recommended had been approved.

In response, the Gujarat High Court Advocates Association filed a writ petition in the Supreme Court seeking directions to the Centre to act on his elevation, with the likes of Fali S. Nariman, Arvind Datar and Dushyant Dave, among others, arguing his case. Later, however, the Collegium recommended his name as the Chief Justice of the Tripura High Court – the move seen as a 'settlement' of sorts – where he has served ever since.

"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," the Collegium had said on September 5, 2019.

In its latest recommendations, the Collegium has kept the name of Justice A.S. Oka, the senior-most HC Chief Justice, while omitting the name of Justice Kureshi. According to reports, the recently-retired Justice R.F. Fariman insistence on Justice Kureshi's name had stalled the appointment process. Nariman is reportedly “learnt to have insisted when he was part of the collegium that a senior judge like Justice Kureshi be elevated to the apex court before the other names were considered. As a result, there appeared to be a stalemate on the elevation of judges to the Supreme Court for several months...”

A report in The Wire from February this year this year had hinted at “disagreement” within the five-member Collegium on elevating Justice Kureshi. It cited a now-deleted Facebook post by a former Supreme Court judge indicating that “one of the five judges had said that“he will oppose any recommendation of judges unless Justice Kureshi is recommended”. The post, without naming the dissenting judge, had mentioned that he was “retiring later this year”.

As part of the Tripura HC, Justice Kureshi has been behind some notable judgements, including saying that government servants were entitled to hold and express their political beliefs. The HC had also stayed the arrest of someone who had criticised the BJP's missed call campaign on Facebook. The court also recently observed that those who had taken a dose of the COVID-19 vaccine could not be made to wait indefinitely for the second dose.