The Collegium strikes again: Transfer of Justice Akil Kureshi

Dushyant Dave

The elevation of Justice Ranjan Gogoi as the Chief Justice of India gave fresh hope to the legal fraternity that the administration of justice will now be stronger and better. Along with him in the Collegium are Justices Madan Lokur, Kurian Joseph, AK Sikri and SA Bobde. Each of these five judges is respected universally for his impeccable character and qualities.

It is precisely for the above reasons that one is left nonplussed about their decision to transfer Justice Akil Kureshi from the High Court of Gujarat to the High Court of Judicature at Bombay. There can be little doubt left in the minds of those in the administration of justice that the transfer is punitive in nature. Far from being applauded, Justice Kureshi finds himself in the dock.

I have no doubt that the Collegium had “input” or “material” before it to support its decision. But I have equally no doubt that such input or material was not gathered fairly by the concerned authorities, nor was just material placed before the Collegium by them.

I say so because like thousands of others who are members of the legal fraternity, I have known Justice Kureshi, though from distance, as a judge with impeccable character, integrity, sincerity, courage and efficiency. He combines these characteristics with deep acumen in law. He is fiercely independent from all considerations, political or economic. He writes outstanding judgments which are not only interesting to read, but are difficult to assail before the Higher Court. His only fault is that he remains aloof from all except his family and work.

So, one is naturally perplexed at the decision of the Collegium, which generated high hopes. The Second Judges case mandates the way transfers in Higher Judiciary are to take place when it directs:

“(1) In the formation of his opinion, the Chief Justice of India, in the case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India. The personal factors relating to the Judge concerned, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice.”

The Supreme Court laid emphasis on “participatory consultative process” for “selecting the best and most suitable persons available for appointment” and stressed that “Judges should be of stern stuff and tough fibre, unbending before power, economic or political”. And yet, the transfer decision of the Collegium appears to raise disturbing questions.

Justice Kureshi may have accepted the transfer instantly because he is a proud and honourable man who would not want to appeal or represent to the Collegium for mercy to reverse the transfer order. Therefore, his acceptance is irrelevant for this debate.

The fundamental basis of the series of judgments in the Judges Appointment Cases, by which the Supreme Court Collegium wrested the power from the Executive to appoint or transfer judges of the High Court and Supreme Court, was to make the process transparent, objective and independent. The Court proclaimed that this was done to reaffirm the Rule of Law and prevent any damage to democracy.

Experience, however, has shown that judges after judges who have been party to judgments favouring the most powerful politician of the country today have been rewarded with Governorship, Chairmanship of Tribunals and Commissions or have even been appointed as Supreme Court and High Court Judges. It almost appears as if for some of the judges in Judiciary, the touch of the cases involving powerful politicians proves to be the Midas Touch. This is not to say that they were not competent. But the perception is that they somehow, by fortuitous circumstances got the assignments.

On the other hand, judges who delivered judgments which were perceived by this powerful politician to be against him, directly or indirectly, have been at the receiving end. Did Justice Akil Kureshi, as reflected by the transfer decision, commit a Herculean mistake in passing an adverse order against this powerful personality?

The vindictiveness on the part of the Executive against Justice Kureshi is writ large in the fact that although under orders of transfer, he continues to be a judge of the Gujarat High Court till he assumes charge at the Bombay High Court. Yet with spite, the Central government issued a notification appointing Justice Anant Dave as the Acting Chief Justice of the Gujarat High Court on the elevation of Justice R Subhash Reddy as the judge of Supreme Court, instead of making Justice Kureshi the acting Chief Justice. The powers that be clearly did not want to see him as acting Chief Justice even for a day. Fortunately, this course has now been corrected with the intervention of the Hon’ble Chief Justice and the President of India. A proclamation has been issued appointing Mr. Justice Kureshi as the Acting Chief Justice till further orders.

Similarly, the transfer of Justice Jayant Patel from the High Court of Karnataka to the High Court of Allahabad was wrong and sent shock waves through the spine of the members of the judiciary across the country. Fall in line or you will meet this fate, appears to be the message.

Justice Kureshi’s transfer is the last straw on the camel’s back, and I have serious doubts whether the Judiciary – higher and subordinate -can recover from it to assert its strong independence and impartiality, at least in Gujarat.

One really wishes that the Collegium, especially of the extraordinary calibre as at present, would think out of the box to cross-check the input or materials that concerned authorities may have placed before the Collegium with independent sources, especially members of the Bar and former Supreme Court judges who came from the Gujarat High Court.

The rationale for the Second Judges case was to give powers to the Collegium “to eliminate political influence” in appointments and transfers. But while entrusting the power to the Collegium, the Supreme Court wanted that the principle of non-arbitrariness be all-pervasive throughout the process followed by it, and that every power vested in a public authority serve a public purpose and invariably be exercised to promote public interest.

The Bar in the Gujarat High Court is rightly agitated. It is the same Bar which decades ago stood in unison against similar treatment meted out to Justice PD Desai – who turned out to be one of the greatest Judges of this country – by the then Congress government.

My Lords with respects, please listen to the voice of the Bar and reconsider your decision in the larger interest of the Judiciary and the Nation.

The Author is a Senior Advocate and Former President of the Supreme Court Bar Association.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.