Collegium's decision, another blip to the judicial independence

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Last Updated: Tue, Sep 24th, 2019, 21:36:26hrs
Collegium's decision, another blip to the judicial independence
A little over a week after the collegium came under criticism for its transfer of Madras High Court Justice V.K. Tahilramani to the Meghalaya High Court, the judiciary body is under fire again for their decision to transfer Justice A.A. Kureshi to the Tripura High Court where he’ll serve as Chief Justice.

This comes after a May 10 recommendation from the collegium to transfer him to the Madhya Pradesh High Court. The reason for the collegium, led by Chief Justice of India Ranjan Gogoi, changing its mind hasn’t been given. The only indication the collegium gave stated a modification on their own previous recommendation due to communication from the government in late August. Unlike Justice Tahilramani’s case, in which she resigned, Justice Kureshi denied speculation that he offered his resignation. Given these two instances, the Hindu editorial states that the collegium has a credibility deficit –

“In modifying its recommendation concerning Justice A.A. Kureshi, the Supreme Court Collegium appears to have succumbed to pressure from the Union government. What is indisputable is that the Collegium system is deeply flawed, and is in need of urgent remedy”.

Former President of the Supreme Court Bar Association, Vikas Singh, called the decision a punishment saying in part, “It sends a signal that you are not considered for any important assignment”. The Gujarat High Court Advocates Association (GHCAA) challenged the move and filed a petition in the Supreme Court. President of the GHCAA, Yatin Oza called this an ‘abject surrender’. The association alleges that Justice Kureshi was singled out as three other judges were allowed to pass without notice.

In response to the petition, the Supreme Court stated that the appointment and transfer of judges form the “the root of the administration of justice”. The apex court added, “Interference in system of administration of justice does not augur well for the institution”. As Ravi Shankar Prasad was appointed Law Minister in the Modi 2.0 government, he stated that his office would be a stakeholder in judicial appointments. Nilashish Chaudhary, in a column for Live Law calls this saga a death knell for the independence of judiciary –

“This controversy yet again opens up the debate regarding transparency in the process of appointment of judges. What needs to be seen is if the Collegium or the Centre decide todivulge the reason behind the modification in Justice Kureshi's recommendation”.

The GHCAA was irked by the government’s inaction and a July petition was filed in the Supreme Court requesting the apex court to direct the government to implement the collegium’s recommendation. Oza claimed that the delay was due to the government, particularly Prime Minister and Home Minister Amit Shah were not in favour due to a case involving Shah and Justice Kureshi.

One of the cases that Justice Kureshi oversaw during his time at the Gujarat High Court was the Sohrabuddin – Kausarbi murder case. In August 2010, a single bench of Justice Kureshi reversed a previous order of a special CBI court which rejected a custodial remand plea of Amit Shah. According to Maneesh Chhibber, writing in The Print, he paints a picture of the government building a narrative of Justice Kureshi’s alleged communal bias after a letter was written by Ravi Shankar Prasad to the Chief Justice Gogoi -

“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”.

In the interim period between the original recommendation and the government communicating to the collegium, the delay to elevate him caused a stir and some saw it as a case against Justice Kureshi personally. The Supreme Court at the time didn’t push the centre to act. Jagdeep S. Chhokar, in an August column for The Wire, questioned the delay –

“Notwithstanding the reasons why the government of India is not taking a decision in the matter, what is baffling is the acceptance of the Supreme Court of what seems to be an obvious attempt to stonewall and frustrate a recommendation of the collegium, by giving week after week to the Solicitor General “to take instructions” from the government of India”.

Justice Kureshi also spent some time as a judge in the Bombay High Court. He was transferred by the collegium. During this process, the centre chose and designated a junior judge, Justice Anantkumar S. Dave, to be the Acting Chief Justice of the Gujarat High Court. Following this, Chief Justice Ranjan Gogoi in a letter to centre calling the government’s decision ‘highly arbitrary’. The centre backed down after receiving the letter.

The dual cases of Justices Tahilramani and Kureshi have brought upon the collegium warranted attention and criticism. The Supreme Court could’ve perhaps been more forceful in its word regarding the independence of the collegium and when it comes to something as precious as the judiciary, the system is going through tough times.

More columns by Varun Sukumar