Fresh Appointments to SC Stalled Due to Differences on Elevating Justice Akil Kureshi

Justice Kureshi had in 2010 sent Amit Shah to police custody in the Sohrabuddin fake encounter case.

New Delhi: Time is running out for the chief justice of the Tripura high court, Akil Abdulhamid Kureshi, as well as for the aspiring chief justices of several high courts, who are already in line for elevation to the Supreme Court.

During his tenure as a Gujarat high court judge, Justice Kureshi had in 2010 sent Amit Shah to police custody in the Sohrabuddin fake encounter case.

Chief Justice Kureshi, appointed to his present position on November 16, 2019, is retiring on March 6, 2022, whereas the chief justices of Allahabad (Justice Govind Mathur), Calcutta (Thottathil B.Radhakrishnan), Chhattisgarh (P.R. Ramachandra Menon), Himachal Pradesh (Lingappa Narayana Swamy), Manipur (Ramalingam Sudhakar), Telangana (Kumari Hima Kohli) and Uttarakhand (Raghvendra Singh Chauhan) high courts are retiring this year.

Disagreement within the five-member collegium of the apex court over elevating Chief Justice Kureshi before others has apparently stalled the process of appointing new judges. A Facebook post (now deleted, but republished here) by a former judge of the Supreme Court, Justice Markandey Katju, has revealed that one of the five judges of the collegium (most probably Justice Rohinton Fali Nariman) has said that he will oppose any recommendation of judges unless Justice Kureshi is recommended.

According to Justice Katju, the judge in the collegium who is backing Justice Kureshi’s claims for elevation over others, is retiring later this year. Although Justice Katju did not name the Supreme Court judge, it is clear that apart from the Chief Justice of India, S.A. Bobde, who is retiring in April, the other judge (within the collegium) to retire later this year is Justice Nariman.  The other judges (outside the collegium) retiring this year include Justices Ashok Bhushan (July 4), Justice Navin Sinha (August 18) and Justice Indu Malhotra (March 13). Currently, the collegium includes CJI Bobde and Justices N.V. Ramana, Nariman,  U.U. Lalit and A.M. Khanwilkar. The early elevation of Chief Justice Kureshi, well before his retirement from the high court, will help him to gain seniority over other appointees in the Supreme Court and ensure him a longer tenure at the apex court, beyond just three years.

The Supreme Court collegium’s recommendation to appoint Justice Kureshi as the Chief Justice of the Madhya Pradesh high court had to be recalled in 2019 because the Centre opposed it, as it did not want Justice Kureshi to head a big high court. Instead, the collegium, headed by then CJI Ranjan Gogoi, and the Centre reached a compromise and elevated Justice Kureshi as the chief justice of the  Tripura high court. The non-appointment of Justice Kureshi as the chief justice of the Madhya Pradesh high court was then attributed to his decision in 2010 as a judge of the Gujarat high court to send Amit Shah, who had then quit as the minister of state for home in Gujarat, to police custody in the Sohrabuddin fake encounter case.

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Five of the high court chief justices will retire before August. Chief Justice Sudhakar will retire on February 13; Chief Justices Govind Mathur and Radhakrishnan on April 13 and 28 respectively. Chief Justices Menon and Narayana Swamy will superannuate on May 31 and June 30 respectively.

The dates of retirement of the chief justices of the high courts are important factors to be considered for elevation, although nothing prevents the collegium from recommending a judge who has already retired from the high court for the appointment to the Supreme Court. Again, although nothing prevents the collegium from recommending someone outside the pool of high court chief justices, the predominant trend in recent decades has been to prioritise the chief justices, who are on the verge of retirement from their high courts, for elevation to the Supreme Court, so that they get three more years of service as a judge. While the high court judges retire on completion of 62 years of age, the tenure of the Supreme Court judges lasts till they complete 65 years.

The Supreme Court’s collegium did not meet even once in 2020 to recommend appointment of new judges to the court to fill four vacancies. The number of vacancies in the court with a sanctioned strength of 34 judges is likely to rise to nine, with five more judges retiring this year.

If the government succeeds in stalling fresh appointments to the Supreme Court till August because of its resistance to appointing Justice Kureshi, it may well be banking on the likely cooperation from the next collegium which will include Justices D.Y. Chandrachud and L. Nageswara Rao, to recommend names other than Justice Kureshi.

To many observers, however, the non-appointment of Justice Kureshi, an outstanding judge and a chief justice, to the Supreme Court, will clearly be seen as a loss to the institution. Many are also concerned over the impact of prolonged non-appointment of fresh judges to the apex court over its backlog of cases awaiting adjudication. Several issues of constitutional importance have not been heard for months together due to the non-constitution of appropriate benches.