Member of Rajya Sabha and Senior Advocate Vivek K Tankha has written a letter to the Union Law Minister, Ravi Shankar Prasad, expressing his concern over the delay in notifying the appointment of Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court.
Calling it a “glaring case of the government’s contumacy”, Tankha says,
“I am writing to you with a heavy heart, given the recent state of affairs. As a Member of Rajya Sabha from the state of Madhya Pradesh, and as a senior member of the bar, I must articulate the unease amongst the members of the bar and public at large on the issue of appointment of judges/Chief Justices.”
He adds that withholding recommendation of the Collegium for nearly two months erodes the confidence of the people in the Collegium system.
“..withholding the recommendation of the Collegium for nearly two long months erodes the confidence of the people in the working of the Collegium system. More so, when it is done in a case of a judge whose track record is vouched for by the legal fraternity.”
Tankha further attacks the BJP-led NDA Government stating that the past record of the NDA government when it comes to clearing files sent by Collegium is not encouraging.
“The past record of the NDA Government in this respect is not very encouraging. Of the 94 names recommended by the CJI JS Kehar led Collegium, the government held back/returned 36 names for reconsideration. Similarly, during CJI Dipak Misra’s tenure, the Centre held back/returned 55 of 97 recommended names for reconsideration.”
Tankha does not hold back in criticising the Law Ministry, stating that while the Law Ministry might be correct in its conviction that it is not a post office, it has, of late, been acting like an errant postman.
“The Ministry of Law & Justice may legitimately feel that it is not a post office. Of late, it has been acting more in the vein of an errant postman. We are governed by a Constitution of which the last work on interpretation lies with the Supreme Court. The Parliament in its wisdom can always initiate reform till it does not violate the basic structure of our Constitution propounded in Keswananda Bharti’s case.”
He thus goes on to conclude that the Central Government’s conduct leads to one “inescapable conclusion that the Centre/Law Ministry has lost its faith in the Collegium and its decision-making ability”.
“Such a message in a disastrous one and it will lead to the erosion of reputation of the Judiciary in the minds of the public at large. It is also indicative of the fact that the Ministry is choosing to take a public stand and go against the Constitutional Scheme for judicial appointments.”, he fears.
Tankha acknowledges that at times the Collegium system “looks very incestuous“. However, till reform takes place the judicial verdict in the NJAC case must prevail.
Tankha concludes his letter by appealing to the Central Government to preserve the Constitutional Scheme and instill confidence in the judiciary.
“When the Collegium and the Ministry arc at loggerheads, the only sufferer is the justice delivery system.
My earnest appeal to the government is to either respect the decision of the Collegium and to complete the process of appointment or if it has valid reasons, to present those reasons to the Collegium for its consideration. At any rate, these and such impasses need to be debated both in Parliament as also amongst the stakeholders, since judicial independence is an inherent facet of our Republic, which needs to be preserved at any cost.”
The Collegium had recommended the name of Justice Akil Kureshi for appointment as Chief Justice of Madhya Pradesh High Court on May 10. On the final day before the declaration of 2019 General election results, the Central government issued twelve notifications clearing appointments of judges to various High Courts and the Supreme Court.
Justice Kureshi’s name, however, did not feature in the list of cleared names.
Subsequently, Central government notified the appointment of Justice Ravi Shanker Jha as acting Chief Justice of Madhya Pradesh High on June 7, further adding to the unrest around elevation of Justice Akil Kureshi to the Madhya Pradesh High Court.
[Read letter by Vivek Tankha]