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Government vs Judiciary: Crucial battle ahead: Dr Satish Misra

By keeping the recommendation of the Supreme Court collegium recommendation to elevate Justice Akil Abdulhamid Kureshi as Madhya Pradesh Chief Justice pending, the Modi government has demonstrated its resolve to bring the country’s judiciary under executive control-a goal that is being pursued firmly since coming to power in 2014.

Justice Kureshi is the senior most judge of the Gujarat High Court, currently serving in the Bombay High Court. The government order was issued by the Ministry of Law and Justice on 7 June this year in view of the June 9 retirement of the then chief justice S K Seth, when instead of clearing the name of Justice Kureshi the chief justice to the post of Madhya Pradesh High Court, junior Ravi Shnakar Jha was made the acting chief justice.

In 2018, when Justice Kureshi as the senior most judge of the Gujarat High Court was to be appointed as the acting chief justice, the government had ensured that he was transferred to Bombay High Court to appoint his junior Justice A S Dave to the post.

The Gujarat High Court Advocate Association (GHCAA) had, then, strongly protested at bypassing of the principle of seniority but then the governments have their own clever ways of manipulation. Justice Kureshi did his L.L. B. degree in 1983, and started practicing as an advocate in the Gujarat High Court. He was appointed as the additional judge of the Gujarat High Court in March 2004 and was confirmed as a permanent judge in 2005.

Even a quick glance at developments related to the denial of elevation to a higher post to Justice Kureshi clearly reveals that the government does not want judiciary to function independently. Within first few months of coming to power, the Modi government, in its wisdom and riding the popular wave after receiving a huge popular mandate in 2014, had enacted an act for setting up a National Judicial Appointments Commission (NJAC) sowing seeds of discord of the ongoing confrontation.

Rift between the executive and judiciary, whose separation of power was one of the guiding principles of the country’s Constitution, began to grow when the latter stuck to its ground by declaring the NJAC Act as unconstitutional. There is no denying the fact that an independent judiciary is the foundation of democracy because people’s faith in the government and democratic system would totally be eroded if judicial process were not popularly perceived as fair and non-partisan.

While Justice Kureshi’s case of denial of his right is not the first act of delayed justice by the Modi government, it had done almost the same with Justice K M Joseph earlier in 2018 whose case of recommendation by the Supreme Court collegium for elevation to the apex court was delayed for considerable period of time.

In case of Justice Joseph, Minister of Law and Justice Ravi Shankar Prasad had, through a written communique, asked the collegium to reconsider its 10 January 2018 decision to elevate him to the apex court. The Supreme Court collegium did not opt for direct confrontation with the government but chose to reiterate its earlier decision. The five senior most judges of the Supreme court had said that they had “on principle, unanimously agreed that the recommendation for appointment of Justice K M Joseph as a judge of the Supreme Court should be reiterated”.

The unanimous reiteration was borne out after prolonged constructive discussion and exchange of views among the senior most judges that evolved a consensus. While there were differences of opinion on the course of action that needs to be adopted to counter a serious challenge to the autonomy of the judiciary of the country as mandated by the country’s Constitution but five experiences luminaries of the apex court had decided on a middle of the road non-confrontationist approach.

The Modi government was averse to have Justice Joseph since he as the Chief Justice of the Uttarakhand High Court had stuck down the imposition of the presidential rule add had restored the elected Congress government of former Chief Minister Harish Rawat by asking it to prove majority through a floor test. The top court had given a clear signal to the executivethat pursuing the path of confrontation and standing on false prestige was detrimental and injurious to country’s democratic polity hoping that the government would draw necessary lesson from the ugly episode.

Alas, the Modi government has seemingly refused to learn any lesson from that ugly episode. It appears to have become more vindictive after receiving a huge mandate. In case of Justice Kureshi’s past acts of omission and commission appear to be the culprits.

While nothing official is in the public domain yet the most cited reason for delaying the elevation of Justice Kureshi, according to the PIL filed by the GHCAA in the Supreme Court on 3 July 2019, is political. In 2010, Justice Kureshi had reversed a special CBI court’s order in the famous Sohrabuddin Sheikh encounter case and remanded today’s Union Home Minister Amit Shah in two days of police custody and again in 2012 he had upheld Gujarat Governor Kamla Beniwal’s decision to appoint state Lokayukta without consulting the council of ministers.

While suggestion from some quarters that since both Justice Joseph and Justice Kureshi hail from minority communities may not hold ground on a close scrutiny, vindictiveness is surely seems to influencing the government’s decision as facts bear out.

Judiciary today stands at crucial crossroad. It stands today seriously disrupted. If some concrete steps are not immediately taken to arrest the burgeoning distrust between the two autonomous wings of the democratic polity, there is every danger of its destruction.

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