The Court did not hold that the Union Government’s delay in considering the appointment of Justice Kureshi as Chief Justice of the Madhya Pradesh High Court was unconstitutional.
Justice Akil Kureshi currently serves on the Bombay High Court. Previously, until November 2018, he was a judge of the Gujarat High Court.
On 10 May 2019, the Supreme Court collegium recommended his appointment as Chief Justice of the Madhya Pradesh High Court. At the same time, the collegium recommended three other judges for appointment to the offices of Chief Justice of the Telangana, Himachal Pradesh and Delhi High Courts.
On 22 May, the Union Government issued notifications appointing all of the Collegium’s 10 May recommendations, except Justice Kureshi’s. In fact, it has approved 18 other judicial appointments since 10 May. Furthermore, on 5 June, it appointed Justice Ravi Shanker Jha as the Acting Chief Justice of the Madhya Pradesh High Court.
On 3 July, the Gujarat High Court Advocates Association (GHCAA) filed a Public Interest Litigation before the Supreme Court. It requested the court to direct the Union government to appoint Justice Kureshi as the Madhya Pradesh Chief Justice. Second, it prayed for the court to direct that the Union must conduct the process of reviewing all future recommendations within six weeks.
In its petition, the GHCAA contends that the Union is deliberately withholding its response to the collegium’s recommendation. It submits that:
The MoP flows from Article 217 and empowers the Supreme Court collegium to recommend judges for the role of Chief Justice of a High Court. The collegium comprises the Chief Justice of India and his/her two senior most fellow Supreme Court Justices. The collegium makes its recommendation to the Union Law Ministry, which obtains the concerned state government’s views and then submits a proposal to the Prime Minister. The Union may request the collegium to reconsider its recommendation. However, if the collegium reiterates its recommendation, it becomes a binding obligation on the Union to appoint the recommended judge.
The Second Judges Case established the collegium system in 1993. The majority verdict held that the Chief Justice of India has primacy over judicial appointments and transfers, not the executive. It mandated that the Chief Justice must only consult with his/her two senior most fellow Justices.
The GHCAA submits that Justice Kureshi’s appointment is being stalled due to political reasons. In 2010, Justice Kureshi had reversed a Special CBI court’s order in the Sohrabuddin Sheikh encounter case and remanded the present Home Minister Amit Shah to two days of police custody.
Furthermore, in 2018, when the office of the Chief Justice of the Gujarat High Court lay vacant, Justice Kureshi was overlooked. According to the convention of seniority, he would have been appointed to the post. However, he was transferred to the Bombay High Court and a junior judge was appointed as the Acting Chief Justice of Gujarat High Court.
On 22 July, the Union government stated that Justice Kureshi’s appointment was under consideration. It sought an additional two weeks to respond. Finally, on 28 August Chief Justice Gogoi stated he had received a reply from the Department of Justice. The Chief Justice directed the matter to be listed after the collegium had responded to Department of Justice's reply.
On 5 September, the Collegium recommended Justice Kureshi as the Chief Justice of the Tripura High Court, taking into consideration the Department of Justice's reply. In early November, the Union notified the appointment. Finally, on 13 November, the Supreme Court disposed of the case.
Does the Union Government’s delay in withholding advice on Justice Kureshi’s appointment violate the precedent established in the Second Judges Case?
Does the Union Government’s delay in withholding advice on Justice Kureshi’s appointment subvert the Memorandum of Procedure and thereby violate Article 217 of the Constitution?