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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Who is Justice Akil Kureshi?
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Justice Akil Abdulhamid Kureshi is the current Chief Justice of the Tripura High Court. He practised at the Gujarat High Court until he was appointed as an additional judge on March 7, 2004. He took an oath as a permanent judge on August 12, 2005. He has also acted as the interim Chief Justice of the Gujarat High Court for two weeks before being transferred to the Bombay High Court. Finally, on November 8, 2019, he was appointed as the Chief Justice of the Tripura High Court.

Justice Kureshi was also in line to become the Chief Justice of the Madhya Pradesh High in 2019, on the recommendation of the Supreme Court collegium, but the Centre returned his file. 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.”

As the Centre seemed hesitant to make Justice Kureshi the Chief Justice of an important High Court, the Supreme Court modified its own previous recommendation due to communication from the government in late August in 2019. By a resolution dated September 5, 2019, the collegium recommended him to be appointed as the Chief Justice of the Tripura High Court instead.

“On reconsideration and after taking into account the aforesaid two communications dated 23rd August, 2019 and 27th August, 2019 and the accompanying material, the Collegium resolves 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,” stated the collegium.

The Central government’s reluctance to appoint Justice Akil Kureshi as Chief Justice of Madhya Pradesh High Court, led to the filing of a writ petition before the Supreme Court by the Gujarat High Court Advocates Association. The GHCAA had reportedly prayed that a direction be issued to the Central government to implement the Collegium resolution of May 10, 2019.

Further controversy erupted on August 17, when the Supreme Court collegium recommended the names of nine judges for elevation to the Supreme Court, leaving Justice Kureshi behind. What was more striking was that 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 AA Kureshi. 

According to some reports, the reason for his career hitting a wall is believed to be 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.”

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).

New additional judges in the Supreme Court including three women have filled the vacancies for now, until Justice R Subhash Reddy retires on January 4, 2022. Justice Kureshi is set to retire in March 2022 and it is only fair that he be considered for this vacancy.

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The post Who is Justice Akil Kureshi? appeared first on SabrangIndia.

After the recent controversy over the delay in his elevation, Justice Akil Abdul hamid Kureshi was sworn in as Chief Justice of the Tripura High Court on November 16, in a ceremony marked by the quiet dignity and grace that the much-respected judge has displayed throughout his illustrious career.

Born on March 7, 1960, Kureshi enrolled as an advocate in Gujarat after obtaining an LL.B in 1983. From March 1992 to March 1998, he was appointed as Additional Central Government Standing Counsel. He was also assigned entire work of Central Administrative Tribunal, Ahmedabad and handled large number of service matters on behalf of the Government. From there, Kureshi rose to first become an Additional Judge of the Gujarat High Court in March 2004, and was then made a permanent judge in 2005. In 2010, Kureshi famously remanded Amit Shah to police custody in connection with the Sohrabuddin Sheikh fake encounter case.

After then Chief Justice of the Gujarat High Court Subhash Reddy was elevated to the Supreme Court, there transpired a period of flux when an acting Chief Justice needed to be appointed. While Judge Kureshi was the senior-most, Justice Anant Dave was appointed Acting Chief Justice. Interestingly, the collegium recommended that Kureshi be transferred to the Bombay High Court, something that Gujarat High Court Advocates Association (GHCAA) protested tooth and nail! Less than 24 hours later, on November 2, 2018, Kureshi was made to replace him! But then again, in a shocking turn of events, Kureshi was transferred to the Bombay High Court after less than two weeks on the job!   

Senior Advocate and GHCAA President Yatin Oza told Bar and Bench that this was a clear case of vendetta. Oza said, “He [Justice Kureshi] gave two days remand to Amit Shah in the Sohrabuddin case. When [then Chief Minister of Gujarat] Modi did not appoint a Lokayukta (in Gujarat) for ten years, he upheld the order of the Governor appointing a Lokayukta. They did not like these two orders.”  

In May 2019, the Supreme Court Collegium headed by then Chief Justice of the Indian Supreme Court Ranjan Gogoi, had recommended that Judge Kureshi be elevated as Chief Justice of the Madhya Pradesh High Court. However, the Department of Justice did not take this recommendation and on June 10, Justice Ravi Shankar Jha, who was the senior-most judge at the MP HC was elevated to Acting Chief Justice of the court. The decision on Justice Kureshi’s elevation pending for six months!

Law Minister Ravi Shankar Prasad explained the decision to ignore the collegium’s recommendation saying, “As a Law Minister, I will not be a post office simpliciter. The Law Minister and the Law Ministry has a role as a stakeholder, obviously giving due regard and respect to the Collegium system. But as Law Minister, neither I nor my department will remain a post office. We have a stake and we shall continue to pursue that stake in consultation with the Honourable Supreme Court and Honourable High Courts to expedite the appointments.”

In July, the GHCAA moved Supreme Court imploring it to examine the center’s apparent reluctance to appoint Justice Qureshi as the Chief Justice of the MP HC. Legal luminary Fali S. Nariman appeared for the GHCAA and cited the Memorandum of Procedure (MoP) which flows from Article 217 of the Constitution and allows the Supreme Court Collegium, comprising the Chief Justice and two of his or her senior-most fellow Supreme Court justices, to make its recommendation to the Union Ministry of Law. The Law Ministry then obtains the concerned state government’s view and submit a proposal to the Prime Minister.

 But shockingly, in September, the Collegium changed its recommendation and now suggested that Justice Kureshi be appointed to the Tripura High Court.  

Throughout this period, Justice Kureshi maintained a dignified silence and he was sworn in on Saturday November 16, 2019 in a simple ceremony that reflected his single-minded determination to uphold the dignity of the law. Justice Qureshi was administered the oath of office by governmer Ramesh Bais. In attendance at the ceremony were Tripura Chief Minister Biplab Kumar Deb, Deputy Chief Minster Jishnu Dev Varma, their cabinet colleagues and two other judges, S Talpatra and A Lodh. Seven sitting judges of the Bombay High Court and two sitting Judges of the Gujarat High Court also attended the ceremony.  

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