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Why is Justice Akil Kureshi not in Supreme Court? A little bit more transparency, my lord

People have a right to know if government’s objections to appointments were driven by larger cause of justice or political considerations.

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Last Friday, when the Supreme Court directed the Central Bureau of Investigation to produce data about its success rate in trial courts and high courts, many in the corridors of power might have squirmed. But commoners like as me felt our chest pumping up: So our highest judiciary has stepped in! Let the agency produce success data to show that its seemingly unending process of investigation and prosecution, especially in cases involving politicians, isn’t a means to political ends but are painstaking efforts to bring those cases to logical conclusions.

It was in 2013, during the Manmohan Singh government, that the Supreme Court had chastised the Central Bureau of Investigation (CBI) for being a “caged parrot” that spoke its master’s voice. Eight years later, seven years into the Narendra Modi government, the Madras High Court has to issue directions to “release the caged parrot.”

Nothing has changed for the agency, obviously except the change of masters.

The overall conviction rate in cases investigated by the CBI has been over 65 per cent, but its record in heinous cases is disappointing. While the ‘No one killed Aarushi Talwar’ headline continues to haunt the agency, there is another in the making: Sushant Singh Rajput died, CBI still clueless whether by suicide or murder. Imagine India’s premier investigation agency unable to answer, after one year of investigation, the cause of the actor’s death.

But, why single out just the CBI? Look at the prosecution success rate in cases registered by the Enforcement Directorate (ED). Remember its controversial summons to top executives—a retired IAS officer and a senior IPS officer—of Kerala Infrastructure Investment Fund Board (KIIFB) in the masala bonds case? That was in the run-up to the 2021 assembly election. The KIIFB officials just ignored the summons. And the ED has forgotten about it, post-elections. Also remember the ED’s case against Sharad Pawar in a bank scam ahead of the 2019 Maharashtra assembly election? Post-elections, one has heard of it. In 2016, then revenue-secretary Hasmukh Adhia minced no words telling ED officials how the agency’s conviction rate in money-laundering cases was “very, very poor.” Not much has changed five years later.

It’s, therefore, good to see the Supreme Court pushing for more transparency in the functioning of our investigation agencies. It further strengthens people’s faith in our judiciary.

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

Inexplicable delays and exclusions

A dialogue from Jolly LLB 2 — brilliantly delivered by actor Saurabh Shukla playing a judge in the film — captures the nation’s faith: “Aaj bhi Hindustan mein jab kahin do logon ke beech jhagda hota hai na, koyi vivaad hota hai, toh ek doosre se kya kehte hue paaye jaate hain: I will see you in court. Kyon karte hain bhai woh aisa? Kyonki aaj bhi log bharosa karte hain…nyaypalika kaa.” Loosely translated, when there is a fight between two persons in India, they still tell each other: I will see you in court. Why do they say that? Because they have faith in the judiciary.

It’s in this context that I argue for a bit more transparency in our judicial system. For instance, why should CBI and ED cases against MPs and MLAs, some of which have been pending for a decade, be kept a secret? Chief Justice of India, N.V. Ramana, got a list of these cases last month but they weren’t made public.

One can understand details concerning our national security can’t be made public. But cases against our MPs and MLAs! Should the public not have the right to know? And it’s not the first time where the judiciary has chosen to keep vital details in a ‘sealed envelope’.

We saw a lot of judicial appointments last week—nine new judges in the SC and 68 in HCs. In fact, the top court reiterating 12 names for HCs, overruling the government’s objections, only bolstered public confidence in the independence of our judiciary.

But there are disquieting voices, too, as I heard from some legal luminaries over the weekend. They seemed to have concerns about the exclusion of Tripura HC chief Justice Akil Kureshi from the list of judges appointed to the Supreme Court. Justice Kureshi, number two on the all-India judges’ seniority list, has been left out again. In 2019, the SC collegium had recommended his elevation as Madhya Pradesh High Court chief justice. But, it reassigned him to the Tripura High Court, deferring to the government’s objections. Now he has been left out of the Supreme Court.

“It sends out a wrong message that judges who stand up to powers that be may lose out when it comes to their promotions,” a legal luminary told me. He pointed out that the judge, when he was in the Gujarat High Court, had sent former state minister and now the union home minister, Amit Shah, to CBI custody in 2010. The eminent lawyer hastened to add that the SC collegium had done the right thing because it was in public interest to fill the vacancies in the SC and HCs, instead of making an individual judge’s promotion an issue with the executive.

CJI Ramana, who presides over the collegium comprising four other senior-most judges, isn’t known to show any undue consideration to the executive. An SC bench headed by him had, in January last year, delivered a landmark judgment, terming access to internet as a fundamental right and pulling up the government for telecommunications blackout in Jammu and Kashmir after the nullification of Article 370 in 2019.

It’s, therefore, presumptuous to read anything amiss in the exclusion of Justice Kureshi from the list of nine judges who were appointed to the Supreme Court last week. The highest judiciary can’t be expected to go by public perceptions and misgivings based on presumptions. But it’s high time the Supreme Court collegium brought a little more transparency in appointments. People are still guessing why senior advocate Saurabh Kripal’s appointment to the Delhi HC, as recommended by its collegium, has been hanging fire for the past four years. Is it because he is gay and his partner a European, as some reports in the media have suggested?

Neither the government nor the Supreme Court has come clear on this. There are many other instances of inexplicable delays and exclusions in judicial appointments, leading to speculations and apprehensions in public minds.

Also read: Interference in appointments, transfers of judges doesn’t augur well: Supreme Court

A little more transparency 

We know that the SC collegium goes by the merits and record of a lawyer or a judge when it considers their appointment or promotion. But the same can’t be said definitely about politicians in power. There are already talks in legal circles about how the government sits over recommendations for appointments as a delaying tactic so that even if the collegium were to re-iterate it later, the judge would lose on seniority. One agrees that the SC or HC collegium can’t make public their deliberations or reasons for their decisions to include or exclude a particular lawyer or judge from the list of recommendations.

People have faith in collegium’s impartiality, but the same can’t be said about our executive, comprising politicians who have power, and not necessarily cause of justice, as their primary concern. One can understand the Supreme Court’s reluctance to disclose the government’s objections because it may adversely impact the individuals concerned in carrying out their duties. But the people have the right to know whether such objections were driven by the larger cause of justice or political considerations. It’s time the apex court thought of setting a timeframe for disclosure of such details—maybe, 10 or 20 years post facto.

The author tweets @dksingh73. Views are personal.

(Edited by Neera Majumdar)

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