New Delhi: The Gujarat High Court Advocates Association has filed a writ petition in the Supreme Court claiming that the Modi government withholding the appointment of Justice Akil Kureshi as the chief justice of the Madhya Pradesh High Court is an instance of the executive exerting disproportionate influence in the process of judicial appointments.
The plea has challenged the central government’s inaction to sign off on the Supreme Court collegium’s recommendation that Justice Kureshi is appointed to the top post in Madhya Pradesh. The association has further submitted that it was compelled to approach the apex court since all other efforts of representation to the law ministry had failed.
“It is the judiciary that has primacy over the executive in the matters of appointment and transfer of chief justices and high court judges and by withholding the advice, the executive is exerting disproportionate influence in the process of appointment of chief justice of a high court,” reads the plea, filed through the association’s president, senior advocate Yatin Oza.
The Supreme Court collegium on 10 May had recommended the elevation of Justice Kureshi, the then senior-most judge of the Gujarat High Court, as the chief justice of the Madhya Pradesh High Court. In June, however, the Modi government appointed Justice Ravi Shankar Jha as the acting chief justice of the high court even as it kept the collegium’s recommendation pending.
The Gujarat Bar had earlier alleged that the Modi government disliked Justice Kureshi as he had delivered two major verdicts in the high court in matters pertaining to PM Modi and BJP president Amit Shah between 2010 and 2011.
Justice Kureshi was also at the centre of confusion last year when Justice A.S. Dave, who is junior to Kureshi, was set to be appointed as the acting chief justice of the Gujarat High Court when Justice Subhash Reddy was elevated to the Supreme Court. Kureshi was transferred to the Bombay High Court at the same time, leading to protests from the Gujarat Bar.
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‘Executive asserting primacy’
The plea, drafted by advocate Purvish Malkan, claims that the “failure to elevate Kureshi is not only unreasonable and arbitrary but also seriously jeopardizes the independence of the judiciary and hence, violates the basic structure of the Constitution of India”.
Failing to act on the collegium’s recommendation amounts to the executive’s direct participation in the appointment of Chief Justice that “is not countenanced at law”, it adds.
It has further claimed that the central government had singled out Kureshi as since 10 May, barring him, the Modi government had appointed “18 other additional judges of different high courts”.
Such action, the plea states, threatens the independence of the judiciary because the Centre’s “deliberate inaction impinges and diminishes the primacy of the judiciary in the matters of appointment and transfer of judges to High Court and Supreme Court”.
“The said action or rather the inaction of the respondent is also an attack on the independence of the judiciary as the appointment of judges of the high court and Supreme Court is an integral part of the independence of the judiciary,” it added. “The primacy of the judiciary over the executive in the matters of appointment of judges of the Constitutional courts is to secure the independence of the judiciary.”
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