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New Delhi: The outgoing chief justice of the Rajasthan high court, Akil Kureshi, who was denied a position in the Supreme Court despite being the senior-most chief justice in the country, laid emphasis on the role of an independent judiciary in protecting the rights of common citizens in his farewell address on Saturday.
He also made a pointed reference to the misuse of sedition law to target dissent.
The BJP-led Union government’s opposition to Justice Kureshi’s entry to the Supreme Court led to a stalemate in the collegium with Justice Rohinton Nariman refusing to endorse the nomination of other high court judges unless his name was also cleared for elevation. Earlier, the government refused to appoint him as chief justice of the Madhya Pradesh high court.
In his speech, Justice Kureshi made a dignified reference to the transfers he had faced – that were widely seen as acts of punitive shunting:
“Recently, a former Chief Justice of India has written his autobiography. I haven’t read it but going by media reports he has made some disclosures. Regarding changing my recommendation for chief justice of MP high court to chief justice of Tripura high court, it is stated that the government had some negative perceptions about me based on judicial opinions.”
“As a judge of the constitutional court, whose most primary duty is to protect the fundamental and human rights of the citizens, I consider it a certificate of independence,” Justice Kureshi said, referring to the recent autobiography by former Chief Justice of India Ranjan Gogoi.
Former CJI Gogoi also led the collegium, which changed its initial recommendation to appoint Justice Kureshi as the Chief Justice of Tripura high court. Responding to the collegium’s decision, Justice Kureshi said that what was of “greater significance” to him was that he had not been “officially communicated” about “the perception of the judiciary” about his judicial opinions that were not liked by the Union government.
Speaking about his journey from ‘Akil’ to ‘Justice Kuresh’, he narrated an incident he witnessed as a student during the Emergency of Indira Gandhi:
“In the Gujarat High Court compound, a large crowd had gathered. There was heavy police deployment. There was excitement in the air which boiled over to chaos when the police arrested a person and hoisted him into a van, keeping the crowd at bay with their batons. A young boy still not out of school watched the proceedings with bated breath. It was the year of 1974. Navnirman movement, a students’ agitation against the price rise and corruption in the government was at its peak. The administration hit back by passing detention orders against the activists under the Maintenance of Internal Security Act (MISA). The rulers of the day had yet to discover the law of sedition to silence dissent.
The activists went underground. One of them, Shri Girishbhai Patel surfaced to file habeas corpus petition to challenge detention orders. He was quickly apprehended. He gave a brief extempore speech from inside the police van before he was whisked away. His speech was full of defiance challenging the might of authoritarian rule backed by government machinery. His words urging the people not to bow down to the bullying of corrupt political class still resonate in my ears. Those were fascinating days. That moment triggered my romance for law, watching the struggle of the society for a just order and the enormous power that the Courts had to aid this process.” (original emphasis)
Justice Kureshi first came to limelight in 2010 when, as a judge of the Gujarat high court, he had remanded the then state home minister and BJP leader Amit Shah to CBI custody in the Sohrabuddin fake encounter case. Later, he ruled against the Narendra Modi-led Gujarat government in the Lokayukta appointment case. The state government had also sought his recusal in the criminal appeal of former Gujarat minister Maya Kodnani in a case related to the Naroda Patiya massacre during the 2002 communal riots.
Adverse judgments against governments have affected Justice Kureshi’s otherwise unblemished judicial career. In 2018, when he was supposed to take over the position of the acting chief justice of Gujarat high court, Justice Kureshi was transferred to the Bombay high court to an inferior position. In 2018, Live Law had reported that the Gujarat high court Advocates’ Association had passed a unanimous resolution in protest of the transfer order.
In May 2019, when the collegium made its recommendation to elevate Justice Kureshi as chief justice of Madhya Pradesh high court, the Union government objected, although three other recommendations made by the collegium were approved by it. The collegium eventually gave in to the pressure and modified its recommendation to send him to the smaller Tripura high court as chief justice.
“So far there have been 48 Chief Justices of India. But when we talk of courage and sacrifice to uphold rights of citizens, we remember one who should have but never did become the Chief Justice of India. Justice H.R. Khanna will always be remembered for his lone dissenting voice in the ADM Jabalpur case,” Justice Kureshi said, in reference to Justice H.R. Khanna whose promotion to the position of CJI was blocked by the Indira Gandhi government.
“The very reason for the existence of courts is to protect the rights of citizens. Far more than any direct affronts, it is the stealthy encroachment on democratic values and rights of the citizens which should worry us,” he said.
He also spoke about an emerging concern at the high courts about Supreme Court collegium’s increasing tendency to reject recommendations by the high court collegium. “It is surprising to see advocates recommended by high courts and being pruned heavily by the Supreme Court. Whatever be the reason for the difference in perception between high court and Supreme Court be resolved or it will be difficult to persuade good advocates to join the bench,” Justice Kureshi said.
His emotional farewell note also came for appreciation from the legal fraternity.
“Do I have any regrets? None at all. Each decision of mine was based on my legal understanding, I’ve been wrong, proved to be wrong on many occasions but never once have I decided something different from my legal belief. I leave with my pride intact that I made no decision based on its consequences for me. Some people believe I should have kneeled for progress. Well, it depends on what you might consider to be progress. The support, love and affection that I have got from lawyers and colleagues wherever I went far outweighs any perceptible progress. I would not barter this for any perceptible progress. I would not barter this for anything,” he said.
“If ever I have to make a choice between the affection from all of you, and the so-called progress, I would gladly choose the former…If life rewinds and permits me a retake of the scene with a miraculous benefit of hindsight and gives me same family and friends and if I am offered judgeship again, I would accept it again and again,” he added.
Justice Kureshi’s distinguished judicial career began in 2004 when he was appointed as a judge in the Gujarat high court and spread over almost two decades in various positions before his final appointment as the Chief Justice of Rajasthan high court in October, 2021.