Writ Petition Summary

Elevation of Justice Kureshi

| 28th Jun 2021

Background & Issue 

The Gujarat High Courts Advocates Association (GHCAA) through its President, Senior Advocate Yatin Oza, challenged the inaction of the Union of India in withholding the appointment of Justice Akil Kureshi as Chief Justice of the Madhya Pradesh High Court. Justice Kureshi served on the Bombay High Court and was recommended by the collegium for elevation to Chief Justiceship in the MP High Court on May 10th 2019. The petitioner argues that the present matter concerns the independence of the judiciary and rule of law which are both a part of the basic structure of the Constitution of India and part of Articles 14 and 50 of the Constitution.

 

What does the petitioner seek?

The petitioner prayed for –

  1. Direction to comply with Article 217 of the Constitution of India read with the “Memorandum of Procedure for Appointment and Transfer of Chief Justices and Judges of the High Courts” (MOP or “the Memorandum of Procedure”) to implement the Collegium’s recommendation.

  2. Direction to comply with the provisions of Para 5 and 6 of the Memorandum in all future appointments of High Court Chief Justices within a period of 6 weeks as per the “Second Judges Case”.

 

Grounds

 

The petitioner alleges that the respondents failed to comply with the Memorandum of Procedure and the mandatory procedure provided under it. This procedure is provided in paragraphs 5 and 6 of the MOP. Further the respondents have not complied with Article 74(1) of the Constitution of India, 1950 by failing to advise the President of India. This is unreasonable and arbitrary. To put the independence of the judiciary in jeopardy which would violate the basic structure of the Constitution.

 

The petitioners invoked Supreme Court Advocate on Record Association and others v. Union of India also known as the ‘Second Judges Case’. The law laid down in this case requires that the Chief Justice of India initiate the proceedings for the appointment of a HC Chief Justice after consulting the two senior-most judges in the SC (apart from those who have served in the same HC and the recommended judge). The recommendation for appointment is then made to the Union Minister of Law who receives feedback from the relevant State Government before submitting the proposal to the Prime Minister who will advise the President. The MOP was created by the Union in consultation with the CJI based on the law laid down in the Second Judges Case and its ruling regarding appointment has been upheld in the NJAC case (Third Judges Case) as well.

 

In the present case the petitioner argues that this recommendation is ‘rendered moot’ due to the inaction by the Union, effectively withholding Justice Kureshi’s appointment. Appointment of judges to the SC and HC are integral parts to the independence of the Judiciary which is a part of the basic structure of the Constitution. Especially in cases of appointments where it is argued that judicial primacy over the Executive is also a part of this basic structure.

 

The petitioner also further contextualises the arbitrary nature of this inaction by pointing out that all the other names recommended by the collegium alongside Justice Kureshi were appointed. This is in breach of the Second Judges Case as well as Articles 14 and 217 of the Constitution. The Second Judges case requires a ‘…strong cogent reason to justify a departure, the order of seniority must be maintained while making the appointment.” As an example of this the petitioner points out that Justice Kureshi was appointed a permanent judge even prior to the current Chief Justice of the Delhi High Court.

 

The petitioner concludes with some choice submissions from the Second Judges Case. They argue that the time bound procedure laid down in the Second Judges case was not complied with and the role of the Executive as per the case is to elicit the views of the State Government regarding the recommended appointment and convey those views to the CJI. Their role does not include arbitrarily withholding advice to the president and any deviation of the Executive from the CJI’s recommendation is justiciable.