Is Justice Kureshi being discriminated because of his links to Gandhi or because he is ‘communal’?

The petition filed by Gujarat High Court Advocates Association challenging the central government’s delay in carrying out the Supreme Court collegium’s recommendation to appoint Justice Akil Kureshi as Chief Justice of a High Court, remains pending before the SC even as the Government shows no intention of accepting the recommendation.

Senior Advocate A.S. Datar had requested the Supreme Court last month to keep the petition pending till the central government notifies his appointment. The court had accepted the request. Senior Advocates of the Gujarat Bar including Yatin Oza, Mihir Thakore and Percy Kavina have lent their support to the petition.

But although the collegium acceded to the central government’s stand that it would have no problem if Justice Kureshi was elevated to a smaller High Court; and changed its earlier recommendation to appoint him as CJ of Madhya Pradesh High Court and instead recommended that he be appointed Chief Justice of the much smaller Tripura High Court, the central government is yet to notify the appointment.

The timeline tells its own story. The collegium recommended Justice Kureshi’s appointment as CJ of MP High Court in May, 2019. On September 5, it modified its recommendation and asked the central government to appoint him as CJ of Tripura HC. But although on October 4, the Government notified the appointment of Chief Justices of seven High Courts, Justice Kureshi’s name was conspicuously missing.

News portal theprint.in reported that Union Law Minister Ravi Shankar Prasad had objected to the appointment of Justice Kureshi. In a letter to the Chief Justice of India, the report alleged, the Law Minister had maintained that Justice Kureshi was unfit to be appointed Chief Justice. Apparently he had cited observations made by Justice Kureshi while recusing from two cases.

But while the collegium appears to have overruled the objections raised and humoured the minister’s alleged plea that Justice Kureshi be appointed CJ of a smaller High Court, the Government is dragging its feet again.

The real reason for the Modi Government’s aversion to Justice Kureshi, say sources in the judiciary, is his order which remanded Amit Shah to judicial custody in the Sohrabuddin Shaikh fake encounter case.

Steeped in Gandhian ideals, Justice Kureshi has neither complained nor resigned, choosing instead to stoically bear the cross.

Justice Kureshi’s father Hamid Kureshi was born in the Sabarmati Ashram. His grandfather, Abdul Kadir Bawazeer, was a close friend of the Mahatma and a lifelong associate. He returned to India along with Gandhi from South Africa.

Hamid Kureshi, who grew up in the Ashram playing on Gandhi’s lap, was a respected lawyer and remained the head of the Sabarmati Ashram Preservation and Memorial Trust till he passed away in 2016. In keeping with his last wishes, he was cremated as he did not want to waste land for graves.

Justice Kureshi himself fell foul of the Modi Government when he ruled against the Gujarat Government’s decision to appoint a retired High Court judge as the Lok Ayukta and upheld the decision of the then Governor. He had also ruled in favour of sending Amit Shah to judicial custody in the Sohrabuddin Sheikh fake encounter case.

Not surprisingly, when time came for Justice Kureshi to be elevated as the Acting Chief Justice of the Gujarat high Court, the Government prevailed over the Supreme Court collegium to deny him the opportunity and instead, got him transferred to Bombay High Court.

Following protests by the Gujarat bar against appointment of Justice A.S. Dave, junior to Justice Kureshi, as Acting CJ, the government withdrew the notification and allowed Justice Kureshi to function as the Acting Chief Justice of Gujarat High Court for 12 (Twelve) days.

And when the collegium recommended his elevation as Chief Justice of the Madhya Pradesh high Court, the Government once again prevailed over the collegium to transfer him to a much smaller High Court in Tripura.

Observers believe Justice Kureshi is being made to face such humiliation not only because he has been an upright judge who refused to buckle under pressure but also because he belongs to the minority community.

No matter what the RSS and the Government say, Muslims in Modi’s Gujarat, which has long ceased to be Gandhi’s Gujarat, are now used to get a raw deal. Even affluent, educated and accomplished Muslims find it impossible to buy property in areas other than places where Muslims are concentrated.

Bureaucrats, retired judges and judicial officers, senior police officers or management executives –it doesn’t really matter who they are—have had similar experience of being turned away.

The Gujarat Government also banned the export of livestock from Tuna port in Kutch just ahead of Eid last year. In April this year the High Court quashed the three notifications, describing them as “colourable exercise of power”.

The judges noted in their order, “With a view to appease a section of society which is averse to export of livestock from Tuna port, the government has from time to time taken all steps to ensure that the petitioners and similarly situated persons are not able to carry out this export from here”.

Significantly, the Modi Government had threatened to extend the ban on livestock export across the country but didn’t go ahead with the plan. The message and the measure was clearly meant to hurt a section of the people in Gujarat and not elsewhere.

What would Mahatma Gandhi have done, had he been alive and in Gujarat in 2019? Would he have donned his lawyer’s robes and returned to the court? Would he have hit the street and launched an agitation?

The irony in Gujarat is that while the cow is venerated, thousands of villages have been deprived of their traditional, community grazing land.

As a result, stray cattle roam the streets and forage for food, often hurting people and pedestrians. A few commuters have even been gored to death by stray cattle. This in a state, where pot-holed roads are not uncommon. Would Gandhi have been amused?