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At his farewell speech, Justice Akil Kureshi as the Chief Justice of Rajasthan High Court made some significant statements about his tenure and some remarks about his appointments to High Courts. His non-elevation to the Supreme Court had become a matter of discussion in the legal fraternity and was deemed as a contentious decision. This decision of the collegium was possibly influenced by the Central government’s reluctance to appoint Justice Kureshi as Chief Justice of Madhya Pradesh High Court back in 2019.
Many attribute Justice Kureshi being snubbed in this manner to his decision to send Amit Shah to judicial custody in connection with the extra-judicial killing of Sohrabuddin Shaikh and his wife, Kausar Bi. In Central Bureau of Investigation vs Amit Shah (Crl. App. No. 1497 of 2010), Justice Kureshi had ordered on August 6, 2010, “I am conscious that law leans against custodial interrogation as also limited jurisdiction of this Court in considering the legality of the discretionary order passed by the Learned Magistrate. In totality of the facts and circumstances of the case, however, I am of the opinion that limited remand would be justified and was called for.”
Moreover, he had given a judgment against the Gujarat government in the Lok Ayukta appointment case. Further, the Gujarat government had also sought the recusal of Justice Kureshi from hearing criminal appeal of former Gujarat Minister and accused Maya Kodnani in the Naroda Patiya massacre of 2002 Gujarat genocide.
Non-elevation to SC
The Gujarat High Court Advocates Association even filed a petition before the apex court. The collegium selected the senior most High Court Chief Justice, AS Oka but did not recommend the next senior Chief Justice in line, i.e., Justice Kureshi.
On May 10, 2019 the Supreme Court in its resolution had said, “Mr. Justice A.A. Kureshi is the senior-most Judge from Gujarat High Court and at present is functioning, on transfer, in Bombay High Court. Having regard to all relevant factors, 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. The Collegium resolves to recommend accordingly.” Thereafter, in September 2019 he was appointed to Tripura High Court instead, as Chief Justice.
In 2018 as well when he was about to become the Acting Chief Justice of the Gujarat High Court, he was transferred to the Bombay High Court as a Junior judge.
In his own words
At his farewell speech, Justice Kureshi made reference to former CJI Ranjan Gogoi’s autobiography where Justice Gogoi had made some disclosure that Justice Kureshi’s recommendation to the Tripura High Court was due to the Central government having negative perceptions about his previous judicial decisions.
Hinting towards his non-elevation, Justice Kureshi referred to Justice HR Khanna who was superseded and was not made Chief Justice of India for his dissenting judgement in the ADM Jabalpur case. He cited it as a shining example of courage and independence and said, “Out of 48 Chief Justices of India, when we speak of courage, we remember the one who was not made the CJI.”
“The very reason for the existence of courts is to protect the rights of citizens. Far more than any direct affronts, it is the stealthy encroachment on democratic values and rights of the citizens which should worry us,” he added.
He also addressed the point about the recommendation of the High Court Collegium being ignored by the Supreme Court collegium. “It is surprising to see advocates recommended by High Courts and being pruned heavily by SC. Whatever be the reason for the difference in perception between HC and SC, be resolved, or it will be difficult to persuade good advocates to join the Bench,” he said.
No regrets
He also said that he has no regrets about his decisions, “Do I have any regrets? None at all. Each decision of mine was based on my legal understanding, I’ve been wrong, proved to be wrong on many occasions but never once have I decided something different from my legal belief,” he said.
“I leave with my pride intact that I made no decision based on its consequences for me. Some people believe I should have kneeled for progress. Well, it depends on what you might consider to be progress. The support, love and affection that I have got from lawyers and colleagues wherever I went, far outweighs any perceptible progress. I would not barter this for anything,” he added.
Notable work
Justice Kureshi has always upheld the constitutional freedoms of free speech, personal liberty and also passed key directions in the recent Covid matters. In Lipika Paul vs State of Tripura and Ors WP(C) No.1363/2019, he had held that government servants are entitled to hold and express their political beliefs. The government servant was suspended from duty after she allegedly participated in a political rally and canvassed against a political party by making defamatory and indecent comments on Facebook. But Justice Kureshi held that every person who is present in the audience during such addresses cannot be stated to have participated in the rally and that, as a government servant she was not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law.
Another important judgment delivered by him was in the case of Dulal Ghosh vs State of Tripura and Ors Crl. Petition No. 8 of 2020, where he held that insults to religion made unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of a class, would not be an offence under section 295A of the Indian Penal Code.
As we had previously reported in SabrangIndia, he was hearing a petition for quashing an FIR registered against the petitioner last year for allegedly hurting the religious sentiments of the Hindu community by insulting the Bhagavad Gita on social media. In this backdrop he had observed, “With rapid spread of social media platforms, the right to free speech has got an entirely new dimension…. What however continues to hold good is that the right of free speech guaranteed under Article 19(1)(a) of the Constitution is subject to reasonable restrictions that may be imposed by the State in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality, contempt of Court, defamation or incitement of an offence…The law is clear. The petitioner can hold his personal beliefs and within the framework of law can also express them, as long as he does not transgress any of the restrictions imposed by law to the freedom of his speech and expression.”
He is also known for taking suo motu cognisance of a news report last year where a minor girl from Tripura was sold to a family in Rajasthan due to abject poverty of her family. By taking suo motu cognisance, the court also discovered that she was raped, was two and a half months pregnant, and had tested positive for Covid-19. The State Commission for Protection of Child Rights, Tripura as well as the Government authorities were directed to take necessary steps for ensuring the return of the girl as soon as she is cured of Coronavirus and her quarantine period is over. (Court on its own motion W.P Civ. PIL No. 6 of 2020).
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