Why Justice Kureshi, who ruled against Shah, could lose out on SC stint despite seniority

Supreme Court collegium cleared 9 names for top court on 21 August. While it chose Justice Abhay Oka, whose name is on top in seniority list, it did not include Justice Akil Kureshi.

File image of Justice Akil Kureshi | YouTube

New Delhi: With the Supreme Court collegium recommending the name of a sitting Gujarat High Court judge for elevation to the top court, the chances of Justice Akil Kureshi’s elevation to the top court have become dim.

Kureshi, who is currently Chief Justice of the Tripura High Court, is number two in the all-India judges’ seniority list. He has earlier served as a judge in the Bombay High Court and the Gujarat High Court.

The Supreme Court collegium — the appointment panel led by Chief Justice of India (CJI) and comprising the top four senior judges after him — on 21 August cleared nine names for the top court. The recommendations have been sent to the central government for formal notification.

While the collegium chose Justice Abhay Oka, chief justice of the Karnataka High Court, whose name is on the top in the judges’ seniority list, it did not include Justice Kureshi.

The others recommended for elevation are Gujarat High Court Chief Justice Vikram Nath, Gujarat High Court judge Justice Bela M. Trivedi, Sikkim High Court Chief Justice J.K. Maheshwari, Telangana High Court’s Justice Hima Kohli, Karnataka High Court judge B.V. Nagarathna, Kerala High Court judge Justice C.T. Ravi Kumar, Madras High Court judge Justice M.M. Sundresh, and senior advocate P.S. Narasimha.

Though Justice Kureshi retires in March next year and there will be two vacancies in the top court before he demits office, sources in the top court said it is unlikely that his name will be proposed. This is because by then there will already be two judges on the Supreme Court bench who count the Gujarat High Court as their parent court.

Judges from Gujarat HC

Justice Trivedi, who is the fifth judge in seniority in the Gujarat High Court, is among the three women judges to get recommended for the apex court. With her elevation, the number of judges from Gujarat will increase to two. Currently, Justice M.R. Shah is the only judge from Gujarat in SC.

There is no hard and fast rule that seniority should be given priority when it comes to appointments to the apex court but, as a convention, it has been.

Supreme Court sources told ThePrint that Justice Trivedi got preference over Justice Kureshi due to her wide experience as a judge.

“She is the only eligible HC judge at the moment who has served the lower judiciary as well, and was always in the zone of consideration for her service experience. There have been very few judges from the subordinate judiciary who have reached the top court. Therefore, it was felt appropriate to recommend her elevation,” one of the sources said.

The source further said the list prepared by the collegium is quite diverse, considering it has three women judges, one nomination from the bar, an OBC judge, and a judge from the Scheduled Castes category.

“When Justice Ramana took over as the CJI, he had in his interaction with the chief justices of all high courts emphasised on the point to have a greater women representation on the bench as well as from the Scheduled Castes and OBC category. The recommendations for SC reflect his approach to herald a new beginning in judiciary,” the source said.

Collegium’s resolution

The Memorandum of Procedure (MoP) — a document that sets out the procedure for the appointment of judges to the SC — is silent on how many judges from a high court can become apex court judges. But a Constitution bench judgment in 2015 had advised equitable regional representation in the top court.

It is believed Justice Kureshi’s appointment to the top court was one of the reasons for the impasse between the collegium members when the then CJI S.A. Bobde was heading it. As a collegium member, Justice R.F. Nariman, who demitted office on 12 August, is said to have insisted that keeping Justice Kureshi’s seniority in mind, he should be appointed as a judge to the apex court and not superseded.

The collegium’s 21 August resolution on elevation came a little over a week after Justice Nariman retired.

Kureshi — judge who sent Amit Shah to police custody

Justice Kureshi, who in 2010 had sent Amit Shah, now the Union Home Minister, to police custody for his alleged involvement in the Sohrabuddin Sheikh encounter case, was appointed as the Chief Justice of Tripura High Court on 16 November 2019. The Supreme Court collegium had on 5 September 2019 proposed his name for this post while he was a Gujarat High Court judge.

But along with that, it had recalled its May 2019 resolution, recommending Justice Kureshi as the chief justice of Madhya Pradesh High Court, which has 40 judges. This was done after the central government objected to Justice Kureshi’s nomination as the head of the Madhya Pradesh High Court — a larger high court compared to Tripura, which has five judges.

(Edited by Neha Mahajan)