New Delhi: After assuming office as Union law minister following the renewed mandate received by the Narendra Modi government at the Centre, Ravi Shankar Prasad asserted that his ministry would not be a “post office”. He was apparently referring to the role it plays, as an important stakeholder, once it receives the Supreme Court collegium’s recommendations for the appointment of judges to the higher judiciary.
While Prasad’s statement could be interpreted to mean that his ministry would not automatically endorse the collegium’s first picks, and would vet each of them, he could well have claimed that his ministry would function as a dustbin for those recommendations it does not favour. The Centre’s inaction on the collegium’s recommendation to elevate Bombay high court judge, Justice Akil Abdulhamid Kureshi, as chief justice of the Madhya Pradesh high court sends ominous signals on how the Modi government is likely to treat the collegium in its second term.
Justice Kureshi had in 2010 remitted the current Union home minister, Amit Shah, to police custody for two days in the Sohrabuddin case.
On May 10, the collegium – comprising Chief Justice of India Ranjan Gogoi and Justices S.A. Bobde and N.V. Ramana – recommended that the Centre elevate Justice Kureshi, who is the senior-most judge from the Gujarat high court, as the chief justice of the Madhya Pradesh high court. He is currently functioning, on transfer, in the Bombay high court. The collegium was keen to elevate Justice Kureshi as the incumbent Chief Justice, S.K. Seth, was to retire on June 9. The collegium found Justice Kureshi suitable in all respects for being appointed as his successor.
Along with Justice Kureshi, the collegium recommended three other names for elevation. Justices V. Ramasubramanian and R.S. Chauhan were appointed chief justices of the high courts of Himachal Pradesh and Telangana respectively. Justice Ramasubramanian, the senior-most judge from the Madras high court, was functioning, on transfer, in the Telangana high court. He was elevated as chief justice of the Himachal Pradesh high court consequent upon the elevation of that court’s chief justice, Surya Kant, to the Supreme Court. Justice Chauhan, the senior-most judge from the Rajasthan high court, was already functioning as the acting chief justice of the Telangana high court.
The third judge, Justice D.N. Patel, a senior puisne judge from the Gujarat high court who was functioning, on transfer, in the Jharkhand high court, was appointed chief justice of the Delhi high court on May 22, after the retirement of Justice Rajendra Menon.
Centre disregards collegium’s recommendation
In the case of Madhya Pradesh high court, however, the Centre disregarded the collegium’s recommendation to elevate Justice Kureshi and notified the appointment of Justice Ravi Shanker Jha, as acting chief justice with effect from June 10.
Justice Jha, who is the senior-most puisne judge in the Madhya Pradesh high court, became entitled to be so elevated, in view of the Centre’s non-appointment of Justice Kureshi before Justice Seth retired on June 9. Although Justice Kureshi retires on March 6, 2022, his non-elevation in time as the chief justice of a high court – despite the collegium’s recommendation – would mean limiting his career prospects unjustifiably.
The Memorandum of Procedure (MoP) – which is yet to be revised following the Supreme Court’s direction in the National Judicial Appointments Commission case in 2015 – envisages that the collegium’s recommendation, if reiterated after reconsideration, once as requested by the Centre, is binding on the latter. But does the Centre have an option to sit on the recommendations, without returning those with which it is not in favour, for the collegium’s reconsideration?
According to the MoP, the process of appointment of the chief justice of a high court must be initiated well in time to ensure the completion at least one month prior to the date of anticipated vacancy. The CJI, the MoP states, would ensure that when a chief justice is transferred from one high court to another, the simultaneous appointment of his successor in office should be made and ordinarily, the arrangement of appointment of an acting chief justice (ACJ) should not be made for more than one month.
Article 223 of the Constitution – which deals with the appointment of an ACJ – says that when the office of chief justice of a high court is vacant or when any such chief justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other judges of the court as the president may appoint for the purpose. Apparently, the Centre has appointed Justice Jha as the ACJ of the Madhya Pradesh high court under this Article.
But the appointment can surely be questioned because with the collegium’s recommendation to elevate Justice Kureshi as the chief justice, having been made on May 10, a vacancy could not have arisen on June 10 merely because the Centre did not choose to act on it, by notifying his appointment.
Interestingly, the MoP envisages appointment of an ACJ under Article 223 only when there is intimation from the incumbent chief justice about his or her proceeding on leave or being unable to perform the duties of the office of the chief justice. This intimation, the MoP adds, must be sent to all concerned well in advance to make arrangement for appointment of an ACJ.
The Amit Shah connection
In the case of Justice Kureshi, it is not just the non-compliance by the Centre with the timeline laid down in the MoP, which causes concern. The Gujarat High Court Advocates’ Association (GHAA) described the appointment of the ACJ of Madhya Pradesh high court as a “clearly uncalled for interference by the executive”. At an extraordinary general meeting, the GHAA passed a resolution to make a “personal representation” to the Union law minister to notify Justice Kureshi’s appointment as the chief justice.
Justice Kureshi joined the Bombay high court on November 14, 2018, after the Centre overlooked his claims to be appointed as the ACJ of the Gujarat high court, despite his seniority. After the then chief justice of Gujarat high court, Justice Subhash Reddy, was elevated to the Supreme Court, Justice Kureshi, who was then the senior-most puisne judge of the Gujarat high court was expected to be elevated as the ACJ. Instead, he was transferred to the Bombay high court, and Justice A.S. Dave, the senior-most judge after Justice Kureshi, was appointed the ACJ.
After the CJI expressed his displeasure over the move, the Centre quickly rescinded its notification, and appointed Justice Kureshi as the ACJ of the Gujarat high court until he took over as the judge of the Bombay high court, within two weeks.
The GHCAA President, Yatin Oza, recalled in an article that Justice Kureshi had once sent Amit Shah to police custody for two days for his role in the Sohrabuddin case. In 2011, Justice Kureshi upheld the decision of the then governor, to appoint Justice R.A. Mehta as Lokayukta in Gujarat, which was challenged by the Narendra Modi-led government in the state. Oza was Shah’s lawyer in 2010, and he found nothing wrong in Justice Kureshi’s decision to remand Shah to police custody.
Oza has alleged that the Centre’s inaction in elevating Justice Kureshi as the CJ of the Madhya Pradesh high court amounted to victimisation. The moot question, therefore, is whether the collegium can assert itself and question the Centre’s inaction on its recommendation, if it fails to return it for its reconsideration.
In his latest address, at a conference of chief justices from the Shanghai Cooperation Organisation at Sochi in Russia, CJI Ranjan Gogoi underlined the importance of strong and independent judges for the independence of the judiciary as an institution. Will he, as the head of the institution, walk the talk?