The Supreme Court collegium is not averse to acceding to the Centre’s request to reconsider a recommendation to elevate a judge as the chief justice of Madhya Pradesh if such a step is needed to avert a constitutional crisis, judicial sources have told The Telegraph.
The pending decision on Justice Akil Kureshi, now serving in Bombay High Court and earlier in Gujarat High Court, is among the most keenly awaited since the Narendra Modi government started its second innings at the Centre.
Gujarat High Court Advocates Association president Yatin Oza had this July said that Justice Kureshi was being singled out for an order passed in 2010 remanding current Union home minister Amit Shah to police custody in a case.
The sources told this newspaper over the weekend that any decision by the collegium on “acceding” to the Centre’s request would be taken after a “conscious consideration” of the plea so as to avoid “triggering any constitutional crisis”.
The collegium has the power to iterate the recommendation, which then becomes binding, but if the Centre does not comply with reaffirmation, an untenable situation can arise, the sources pointed out.
One judicial source said that given the situation, Justice Kureshi, if necessary, could be shifted to some other high court as its chief justice. The most likely choice could be Jharkhand High Court.
The Centre’s communication on Justice Kureshi was received around 10.30pm on Tuesday at the Chief Justice of India’s official residence and so the collegium could not take any decision immediately.
The collegium, which has Chief Justice Ranjan Gogoi and Justices S.A. Bobde and N.V. Ramana, is expected to meet next week to take a formal decision on either “reiterating” or “acceding” to the Centre’s plea, the sources said.
On May 10, the collegium had passed a resolution recommending the name of Justice Kureshi as chief justice of Madhya Pradesh High Court. The Centre, after withholding the file for over four months, returned it to the collegium on August 27, seeking reconsideration.
The sources said the Centre had given certain “confidential reasons” for its opposition to Justice Kureshi’s proposed elevation.
Justice Kureshi is a good, hardworking and honest judge, but since the Union of India has raised certain objections, we need to reconsider the recommendation afresh,” a source said.
Justice Kureshi, who was the senior-most judge of Gujarat High Court, was transferred to Bombay High Court in November last year.
At that time, confusion had reigned after it was revealed that Justice A.S. Dave, junior to Justice Kureshi, would be appointed as acting chief justice of Gujarat High Court after Justice Subhash Reddy’s elevation to the Supreme Court.
Justice Kureshi was transferred to Bombay High Court although the Gujarat Bar
had strongly objected to the move. Eventually, Justice Kureshi served as acting chief justice of Gujarat High Court for a short period, before he assumed his duties at Bombay High Court.
According to the sources who were speaking on the latest developments related to Justice Kureshi, technically the collegium has two options before it: the first is to iterate its recommendation on his proposed shift to Madhya Pradesh and send back the file to the government.
Under the memorandum of procedure that governs the appointments of Supreme Court and high court judges, once the collegium iterates its recommendation, the Centre has to accept it.
The second option is to respect the views of the Centre, so that there is no confrontation, and transfer Justice Kureshi to some other high court. The Centre is said to be against sending Justice Kureshi to Madhya Pradesh.
Earlier, the Centre had withheld for seven months the file related to the proposed elevation of then Uttarakhand High Court Chief Justice K.M. Joseph to the Supreme Court. After the collegium iterated its recommendation, Justice Joseph was eventually elevated to the Supreme Court.
Many in the Bar and the civil society had tied the delay in the Centre clearing the file to Justice Joseph’s decision to quash President’s rule in Uttarakhand in 2016.
Over the weekend, a judicial source said: “If we… reiterate the recommendation, the Centre will have no option but to accept it. But suppose the Centre does not comply with the collegium’s reiteration, there is bound to be a constitutional crisis. In such a scenario, can we issue a mandamus (directive) to the President because he is the appointing authority for judges of the Supreme Court and the high courts?”
Under Article 361 of the Constitution, the President and the governors “shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
Although under the memorandum of procedure the Centre is bound to comply with a reiteration, it is not mentioned what would be the consequential action if the government refuses to do so.
Sources recalled the constitutional crisis triggered by then Manipur Speaker Borababu Singh who had refused to submit himself to contempt proceedings initiated against him by the Supreme Court in 1992 for defying its direction relating to the termination of the service of then legislative secretary Manilal Singh for implementing the top court’s order relating to the disqualification of 21 legislators under the anti-defection law.
Although a five-judge constitution bench had at that time issued nearly a dozen summonses, Borababu had asserted that the Speaker was immune to judicial scrutiny and had for over six months defied all directions from the apex court.
“The court could not take any serious action against him, and the five judges at that time were merely satisfied that Borababu came and tendered his regret,” a source said.
The Gujarat High Court Advocates Association has moved the Supreme Court objecting to the Centre’s reluctance to appoint Justice Kureshi as chief justice of Madhya Pradesh High Court.
In its petition, the association has prayed that a direction be issued to the centre to implement the collegium’s resolution. The association has stated that the inaction on the part of the Centre is an attack on the independence of the judiciary and diminishes the primacy of the judiciary in the matters of appointment and transfer of judges to the high courts and the Supreme Court.
The sources said that in the past two years, the Centre had cleared the appointments of over 200 judges to high courts and 17 judges to the Supreme Court.
Union law minister Ravi Shankar Prasad had pointed out that the Centre was “not a post office” that would merely approve all the recommendations of the collegium.
The Centre, under the memorandum of procedure, has the authority to seek the reconsideration of recommendations, he had asserted.