New Delhi: The Narendra Modi government apparently tried everything it could to stall Justice Akil A. Kureshi’s appointment as chief justice of a high court — it tried to dub him communal, suggested he was unfit to be a chief justice, before finally agreeing that he could be made chief justice, but of a smaller high court.
On 20 September, the Supreme Court collegium made public its 15-day-old decision to “modify” its 10 May recommendation to appoint Justice Kureshi as chief justice of the Madhya Pradesh High Court. Instead, it recommended his name as chief justice of the Tripura High Court.
While doing so, the collegium also referred to two communications from the government, along with “accompanying material”.
The fact that it took the SC collegium two weeks — it sent the recommendation to the Centre also after 10 days — to make its revised decision public has only added to the controversy.
The govt’s communications
Sources in the Supreme Court told ThePrint that Union Law Minister Ravi Shankar Prasad wrote to Chief Justice of India Ranjan Gogoi first on 23 August, objecting to the recommendation to appoint Justice Kureshi as chief justice of the Madhya Pradesh High Court.
In that letter, sources privy to the deliberations said, Prasad also tried to build a case that Kureshi, known for his upright behaviour as a judge, was unfit to be appointed chief justice. The letter and the accompanying material tried to build the argument that as a judge of the Gujarat High Court, some of his judicial pronouncements reflected his communal bias.
To build the narrative, the Centre also sent some judgments and orders passed by the judge in some cases, including appeals by convicts in the Naroda Patiya massacre case such as former BJP minister Maya Kodnani, as well as a case relating to encroachments on Wakf Board land in Gujarat.
The minister’s letter asserted that the judge was “unfit” to be appointed chief justice of any high court.
But sources in the Supreme Court said the government stand was baseless and a clear attempt to deny Justice Kureshi his due.
Following a push-back from the Supreme Court, the minister, just four days later, diluted his stance, now indicating that the Centre would not have a problem if Justice Kureshi was appointed to a smaller high court.
The collegium then on 5 September decided to modify its earlier recommendation to appoint Justice Kureshi as the MP High Court chief justice.
Justice Kureshi and the Naroda Patiya case
In November 2016, Justice Kureshi became the seventh high court judge to recuse from the high-profile Naroda Patiya case, but not before expressing his anguish, saying the image of the institution was “tarnished”.
The case involved appeals against the August 2012 order of a lower court convicting 31 accused, including Kodnani, who was sentenced to 28 years in jail, and Babu Bajrangi, who was awarded a life term, for their alleged role in the massacre of 97 people on 28 February 2002.
Justice Kureshi recused after his relative, advocate B.B. Naik, decided to appear in the case.
“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. I am bound by the court… I have no interest in this case,” The Indian Express had quoted Justice Kureshi as having said after dictating the order announcing his recusal in open court.
Later, on 20 April 2018, another bench of the high court overturned the lower court order and acquitted Kodnani.
The wakf land case
Another example of Kureshi’s “bias” cited by the Centre was a judicial pronouncement by a bench of which he was a member. This pronouncement pertained to illegal occupation and construction on a prime piece of land owned by the Wakf Board in Surat.
In its judgment of July 2017, the bench had ordered the payment of several crore rupees to the Wakf Board Trust by the beneficiaries of the unauthorised occupant of the wakf land.
The bench had also come down heavily on the erstwhile trustees of the wakf land for having “acted in most improper and illegal manner”, ordering that the money be deposited in bank and “not be wasted or used for private purposes”.
Justice Kureshi versus the Centre
The stand-off over his appointment as chief justice isn’t the first time the Modi government has stalled a move to give Justice Kureshi his due.
Last year, the collegium headed by CJI Gogoi decided to transfer him to the Bombay High Court — a move seen by many as one aimed at denying the senior judge his chance to be a member of the collegium of the Gujarat High Court.
Later, even as he was still to join the Bombay High Court, the Centre, in a highly controversial move, designated a judge junior to him the acting chief justice of the Gujarat High Court, an action that resulted in the Chief Justice of India shooting off a strongly-worded letter to the Centre.
The Gujarat High Court Advocates Association’s petition questioning the “unexplained and unwarranted” delay by the Centre in processing his appointment as chief justice of the MP High Court is still pending in the Supreme Court. Association president Yatin Oza has alleged that Justice Kureshi was being penalised for his August 2010 order allowing a two-day CBI custodial remand of Amit Shah, now the Union Minister of Home Affairs, in the Sohrabuddin Sheikh fake encounter case.
Sources in the Supreme Court said the collegium is of the view that the Centre would swiftly process the file, and warrants appointing Justice Kureshi as chief justice of the Tripura High Court would be issued soon.