What makes recent judges' elevation to the supreme court
historic, is not the number of women who are elevated but the counterintuitive
denial to Justice Akil Kureshi.
As the apex court finally gets new nine judges with three women in history, one
renowned name simply remains out. AKIL KURESHI. Why I am not satisfied with
recent judges' elevation despite the elevation of judges from marginalized
communities, especially three women, is because of the justice which is
conspicuously denied to Akil Kureshi. Though this has led to multiple objections
from various sections of the Bar, this is still going to be a very distressing
incident of our time.
However, this is not the first time when the decision of the SC collegium
concerning Akil kureshi has sparked the debate but the controversy is on for
Justice Akil Kureshi
The Incident of 2018
The first case was in 2018 when Justice Kureshi was transferred to the Bombay
High Court when he was all set to take over as Chief Justice of Gujarat High
Court, which is his local high court. Justice R Subhash Reddy, the then Chief
Justice of the Gujarat High Court, had been elevated to the Supreme Court and as
per the norm, the senior-most judge of the High Court would then automatically
become Acting Chief Justice until a new Chief Justice is appointed but Justice
Kureshi was transferred to a lower position to Bombay High Court. The transfer
faced vehement opposition from the Gujarat High Court Advocates Association,
which stoutly showed the capability and integrity of Justice AS kureshi and
denounced his transfer as out and out futile.
Now, the second incident was in May 2019, when the collegium recommended the
appointment of Justice Kureshi, who was serving as the puisne Judge of Bombay
high court, as chief justice of Madhya Pradesh. The central government kept
dragging its feet for some time before it sent back Justice Kureshi's file in
August 2019. Again in September 2019, when collegium gave in and modified its
resolution, it resolved to appoint Justice Kureshi as the acting chief justice
of smaller court in strength, Tripura instead of Madhya Pradesh which had the
strength of 53 judges over three regional branches, for which he was earlier
recommended. Since the reasons behind these decisions of the collegium are not
revealed to the public, one is supposed to fall back upon hypotheses.
There is a widespread and accepted belief that Justice Kureshi is in a constant
political tussle with the current regime due to his judgments which happened to
be against the BJP government. This contention takes us to his two very renowned
judgments, i.e.; 2010 & 2018, 2010, when he remanded, BJP leader Amit Shah in
two days police custody in relation to Sohrabuddin Sheikh's encounter case and
In May 2018, a bench headed by him upheld the conviction of 19 Accused persons
in the post-Godhra riots, where 23 people including women and children were
burnt alive by a mob in 2002. Considering these judgments and multiple refusals
of his elevation, one can easily conclude that Justice Akil Kureshi is persona
non grata for BJP government.
The Concept of Seniority
Notably, Justice Kureshi is the second senior-most Chief Justice and as per the
usual norm of the collegium, he was more than eligible to be elevated to the
supreme court. While making the latest recommendations, the collegium happened
to pick up Justice AS Oka but omitted the next senior chief justice, AS Kureshi.
The current recommendation of the supreme court collegium seems to be tilted
more towards diversity than seniority but that in no way justifies the exclusion
of justice kureshi as there is one more unfilled vacancy.
A chance to correct or the damage has been done?
Justice Kureshi is all set to retire in March 2022 but before his final goodbye
to the institution, he has a chance to become a part of the apex judicial body
with one more vacancy arising out of the retirement of Justice R Subhash Reddy
on January 4, 2022. But now, it is entirely up to the SC collegium to finally
recommend him for this position and maintain the sanctity of the institution
because the refusal to elevate Justice Akil Kureshi to SC, for which he wasn't
only eligible but duly deserved, has sent a very distressing message and has set
a demoralizing precedent for upright judges that the judges who will keep a
check on the executive about the constitutional mandate and duties, will be