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).

Related:

Who is Justice Akil Kureshi?
Can’t keep a good man down: Justice AA Kureshi sworn in as Chief Justice of Tripura HC

The post Justice Akil Kureshi’s legacy of integrity remain untarnished appeared first on SabrangIndia.

Bidding goodbye to Jharkhand Adivasi activist Father Stan Swamy, the Jesuits in India hosted a condolence meet in honour of the 84-year-old personality on June 5, 2021.

“In his death we have lost a courageous, compassionate elder brother. He is an example of us Jesuits to become effective Jesuits,” said Jesuits of India Head Father Stany D’Souza remembering Fr. Swamy.

Many people during the event described Fr Stan as a person, who embraced simple life and worked tirelessly for poor people. Even when he was deprived of his basic rights in jail, Fr Stan continued to fight for the poor and saw Jharkhand Adivasis as his true family. This made his death at Holy Family Hospital, away from his Adivasi brethren, all the more hurtful for his supporters.

“His death will awaken the conscience of people and prompt them to work for marginalised people,” said Father D’Souza.

Many people like former Supreme Court Judge Madan Lokur expressed disappointment at the orders passed by courts, the manner in which authorities and courts handled his detention.

“He had to go to court for a straw sipper, I have seen the pulverisation of human rights over these years, and I am witnessing a downhill slide in the trampling of human rights. Things have gotten worse since the vilification of the Shaheen Bagh women. All we need is a little bit of humanity and kindness,” he said.

Similarly, journalist N. Ram condemned the authoritarian strengths that violate the rule of law and “are motivated by communalism.” He referred to human rights defender Sudha Bharadwaj who is languishing in Byculla jail for nearly three years, suffering worsening health.

“It’s a sad commentary and courts are not acting proactively. We are very disappointed by the higher performance of the judiciary,” said Ram.

He also condemned the National Human Rights Commission (NHRC) for failing to uphold Father Stan’s basic human rights.

Building this further, human rights defender and journalist Teesta Setalvad called his death an institutional murder. She remembered how often Swamy sent articles describing the situation of Jharkhand Adivasis, for whom he filed PILs. Setalvad said that despite his arrest, Swamy was worried about other undertrial prisoners, including the Bhima Koregaon accused.

She urged courts to regularly monitor prisons and ensure timely legal aid. She also called his demise “death in custody”, as he was still an undertrial prisoner at the time. As such, she called for a judicial inquiry into this death.

“We have lost him in a tragic way. We owe it to him and others incarcerated that we leave vibrant campaigns to ensure prison rights and ask for the repeal of the UAPA law. Such laws that are unjust have no right here,” said Setalvad.

Many attendees asserted this demand including Centre for Study of Secularism Director Irfan Engineer. He called upon civil society organisations to demand the unconditional revoking of the UAPA, release of the Bhima Koregaon accused and others imprisoned under draconian laws. “We are a democracy and here freedom of speech is being curbed,” he said.

Further, vocalist and Ramon Magsaysay awardee TM Krishna talked about how no person was willing to arrange a Covid-19 test for the priest. He also talked about the lack of human empathy for ensuring basic needs and appealed for a collective social energy through public and judicial action to keep the movement alive. Krishna considered it “vulgar” that an 84-year-old man was allowed to die. He finally hoped Swamy’s death would be a “galvanising moment for all to ask for the repeal of UAPA and other preventive detention laws.”

Journalist and novelist Nayantara Sehgal said that as a writer in mourning, Father Stan was a man of God who taught the true meaning of religion, to love our neighbour. Sehgal said Swamy did not die but was killed because he worked for the poor, their forest and land rights.

Swamy’s lawyer Mihir Desai said the Jesuit father’s arrest was deliberate, wrongful, and malicious. “They arrested him and put him in jail without seeking custody. We should keep his memory alive, we must keep fighting,” he said.

World Organisation against Torture’s Gerald Staberock criticised the government for its inaction and demanded responsibility from the same.

“It is cruel to put someone in jail at this age. It’s inhumane treatment,” he said and also called for the release of all other human rights defenders who raised their voice against the government.

Further emphasizing State cruelty, International Federation for Human Rights member Alice Mogwe said the federation repeatedly asked the Government of India for his release since November 2020. She condemned the government for “shutting down every voice against it and this is concerning.”

Like Mogwe, United Nations Special Rapporteur Mary Lawlor also stated that she repeatedly raised Fr. Swamy’s case in front of authorities.

“These [UAPA] laws are used as an excuse to put people in prison for a very long time. The UN will soon publish a report on the inhuman practices of charging human rights defenders with jaildom. Those working on indigenous rights are those defenders at greater risk of being targeted. His jail is a stain on the reputation of Indian authorities and it will last forever,” said Lawlor.

Later, Fr Stan’s grand-daughter Sheeba remembered how he rarely visited his village Trichy because he considered the Jharkhand Adivasis his family.

“He was brave because he knew he was right and he knew his calling. Thank you to all who took care of him,” she said.

Other family members also spoke about Fr Stan’s commitment to Adivasis and his love for his claimed family. They condemned the manner in which he died that did not even allow his family to attend his last rites. Family member Lincy said Fr Stan found his calling and lived accordingly.

From the Jesuit community, Jamshedpur Jesuit province member Father Jerry Cutinh referred to Fr Stan’s poem that said, “Caged birds can still sing” and called him a brilliant mind. He added, “Before his arrest in Ranchi, he said, if working for the poor is sedition and a crime, I am ready to face the consequences. His spirit will live on.”

Others like former Archbishop of Canterbury, Mumbai Jesuit Province’s Father Arun D’souza, Father Jesuit provincial of Chennai province, Father Jebamalai Raja and Father Jeyaraj, on behalf of Father General and all Jesuits in Korea paid their respects to Swamy. Jose Maria, from Portugal and people from Turkey also attended the event. Father Danis, from Fr Stan’s hometown, said a few words in his memory. He thanked God for providing Father Stan to the entire world.

Academic experts like officials from the International Solidarity for Academic Freedom (InSAF) in India, Columbia University faculty, TISS professor Brinelle D’Souza, NCHRO Chairman Professor A Marth and even Meghalaya MP Vincent Pala expressed their condolences.

Related:

The institutional murder of Father Stan Swamy
Father Stan Swamy passes away waiting for bail
Impoverished Adivasis Hunted as Criminals
Capital Punishment without trial

The post Jesuits of India, journalists and academics bid Fr Stan Swamy an emotional farewell appeared first on SabrangIndia.