Delay In Fresh Appointments to Supreme Court Due To Difference In Opinion on Elevation Of Justice Akil Kureshi

Delay In Fresh Appointments to Supreme Court Due To Difference In Opinion on Elevation Of Justice Akil Kureshi

Time is running fast for the Chief Justice of the Tripura High Court (HC), Akil Abdulhamid Kureshi, and for other aspiring Chief Justices of several High Courts, whose elevation is awaited to the Supreme Court (SC).

On 16 November 2019, Chief Justice Kureshi, was appointed to his present position and he is going to retire on 6 March 2022. Whereas the other Chief Justices are going to retire in 2021 including Allahabad (Justice Govind Mathur), Calcutta (Thottathil B.Radhakrishnan), Chhattisgarh (P.R. Ramachandra Menon), Himachal Pradesh (Lingappa Narayana Swamy), Manipur (Ramalingam Sudhakar), Telangana (Kumari Hima Kohli) and Uttarakhand (Raghvendra Singh Chauhan).

Disagreement within the five-member collegium of the Top Court regarding the elevation of Chief Justice Kureshi before others has ostensibly stalled the process of appointing new Judges.

The Facebook post of the former Judge of the SC Justice Markandey Katju revealed that one of the five Judges of the collegium has said that he will oppose any recommendation of Judges unless Justice Kureshi is recommended.

According to Justice Katju, the Judge in the collegium who is backing Justice Kureshi's claims for elevation over others is retiring later this year. However, he did not name any of the SC Judges in his post but it is clear that apart from the CJI SA Bobde (retiring in April 2021) the other Judge (within the collegium) to retire later in 2021 is Justice Nariman. Hence, Justice Katju is indirectly pointing at Justice Nariman.

Presently, the SC collegium includes CJI Bobde and Justices N.V. Ramana, Nariman, U.U. Lalit and A.M. Khanwilkar. The early elevation of Chief Justice Kureshi, before he retires from the HC, will help him to gain seniority over other appointees in the Apex Court and it will also ensure his longer tenure at SC.

The SC collegium recommended appointing Justice Kureshi as the Chief Justice of the MP High Court that was recalled in 2019 as the Centre opposed the appointment, as it was not in favour that Justice Kureshi should head a big HC. The collegium, headed by Former CJI Ranjan Gogoi, and the Centre reached a compromise and elevated Justice Kureshi as Chief Justice of the HC.

In 2010, the non-appointment of Justice Kureshi as the Chief Justice of the MP High Court was then attributed to his decision as a Judge of the Gujarat High Court to send Amit Shah, who had then quit as the Minister of state for home in Gujarat, to police custody. In 2010, Justice Kureshi had sent Amit Shah to police custody in the Sohrabuddin fake encounter case.

The retirement dates of the Chief Justices of the High Courts is an important factor for considering elevation, although the collegium is not restricted from recommending a Judge who has retired from the HC for the appointment to the Top Court.

In 2020, the Apex Court's collegium did not meet even once for recommending the appointment of new Judges to the Court to fill the vacancies. The number of vacancies in the Court with a sanctioned strength of 34 Judges will rise to nine as five more judges are retiring in 2021.

If the government continues stalling fresh appointments to the SC till August due to its resistance in appointing Justice Kureshi, it may be banking on the likely cooperation from the next collegium that will include Justices D.Y. Chandrachud and L. Nageswara Rao, to recommend names other than Justice Kureshi. However, the non-appointment of Justice Kureshi, who is an outstanding Judge and a Chief Justice, to the SC, will be a loss to the institution.

The impact of prolonged non-appointment of fresh Judges to the Top Court over its backlog of cases awaiting adjudication is also a point of concern. Several issues of constitutional importance have not been heard months together, due to the non-constitution of appropriate benches.