The Supreme Court Collegium’s Baffling Turn On Justice Kureshi.

Source:- bloombergquint.com

When, in October 2015, a five-judge bench of the Supreme Court struck down the 99th Constitutional Amendment, and with it the National Judicial Appointments Commission, the judgment was celebrated by many as a victory for the cause of judicial independence. The prevailing system, which gives primacy to a collegium of Supreme Court judges in making decisions both on appointments to the higher judiciary and on transfers inter se high courts, the court had ruled, was a part of the Constitution’s basic structure, and could, therefore, never be disturbed. But not only was this verdict palpably wrong, since then several decisions made on elevations and transfers of judges have proved that the collegium does little to enhance the independence of the judiciary. If anything, a good case can be made out to show that the body is, in fact, deeply detrimental to judicial autonomy. This is best exemplified, perhaps, by its recent and remarkable volte-face over the appointment of Justice Akil Kureshi as a chief justice of a high court.

On May 10, this year, the Collegium—comprising the Chief Justice of India Ranjan Gogoi, Justice SA Bobde, and Justice NV Ramana— had recommended Justice Kureshi’s name for the post of chief justice of the Madhya Pradesh High Court.

As the resolution published on the Supreme Court’s website noted, he was the senior-most judge from the Gujarat High Court and was at the time functioning, on transfer, as a judge of the Bombay High Court. This transfer, it’s worth bearing in mind, was also by itself far from uncontroversial. “Having regard to all relevant factors,” the resolution added, “the Collegium is of the considered view that Mr. Justice A.A. Kureshi is suitable in all respects for being appointed as Chief Justice of the Madhya Pradesh High Court.”

Yet, weeks passed by, and the union government, even as it provided its seal of imprimatur to other nominations, simply postponed any consideration of the recommendation concerning Justice Kureshi. Ultimately, it took a writ petition brought before the Supreme Court by the Gujarat High Court Advocates Association, for the government to promise action. And when that action came, we now learn, the government expressed disagreement over the decision to recommend Justice Kureshi as chief justice of the MP High Court.

At this point, one would have thought, the Collegium would have persevered with its endorsement. Instead, in a resolution released on Sept. 20 (but curiously dated Sept. 5), it reneged on its original proposal. The initial recommendation, it noted, had been returned to the Chief Justice of India through two separate letters of Aug. 23 and Aug. 27, along with what it described as “accompanying material”. “On reconsideration,” the resolution added, the collegium had now resolved to “reiterate its earlier recommendation dated 10th May, 2019, with the modification that Mr. Justice A.A. Kureshi be appointed as Chief Justice of the Tripura High Court.”