Gujarat advocates' "rare upsurge" against controversial transfer of a top judge

Justice Akil Kureshi

By RK Misra*
In a rare show of solidarity over the transfer of Justice Akil Kureshi to Bombay High Court, the Bar in the Western India state of Gujarat went on strike and relented only after a meeting with Chief Justice of India, Ranjan Gogoi. Rarely has the transfer of a High Court judge created the sort of upsurge in the legal fraternity in Gujarat as was witnessed when Justice Akil Kureshi was moved to Bombay. The Bar struck work, and in one voice urged the apex court to reconsider it’s decision.
On October 29, the Supreme Court Collegium had recommended transfer of Justice Kureshi, the second most senior judge of the Gujarat High Court to the Bombay High Court. It also cleared the elevation of Gujarat High Court chief justice R Subhash Reddy as a Supreme Court judge. 

Ideally, after justice Reddy’s promotion, Justice Kureshi should have been made acting chief justice. But on November 1, the Centre issued a notification appointing Justice A Dave to this post and asked Justice Kureshi to take charge in Mumbai on or before November 15.
On November 2, the government issued a fresh notification, ’in supersession’ of the earlier one, and appointed justice Kureshi to perform the duties of the chief justice of the Gujarat High Court till this transfer. So, in effect, Justice Kureshi was acting chief justice only for a very short time.
This reportedly came about after the chief justice of India (CJI) took up the matter with the government. On November 3, in an interaction with the media in the Supreme Court press lounge, Chief Justice Gogoi admitted the ‘mistake’ and said that it has been ‘corrected’. "Mistakes do happen”, he said.
No sooner was it known that Justice Kureshi has been transferred to Mumbai, speculation was rife in legal circles that the move to transfer him was done by the government to prevent him from taking over as the acting chief justice of the Gujarat High Court.
The Gujarat High Court Advocates Association (GHAA) called an urgent meeting immediately after the news of his transfer on November 1, and passed a unanimous decision stating that it finds no reason to justify his transfer from senior-most puisne judge of the Gujarat High Court to number five in the Bombay High Court 'ostensibly in the interest of better administration of justice’.
The resolution said that the "Bar believes that such a transfer is unjustified and certainly has no connection with better administration of justice. On the contrary it impinges on the independence of the judiciary. It also resolved to deprecate and condemn the transfer.” The transfer is totally unwarranted, uncalled for and unjust . Not only did it decide to strike work indefinitely but the association also decided to challenge the transfer through a writ petition.
Said Yatin Oza, president of GHAA, “The urgent meeting saw a record attendance and feelings of injustice to a judge of immaculate professional credentials ran strong in the gathered members”.
Twenty senior advocates of the Gujarat High Court in a letter also made an impassioned plea to the five member Supreme Court collegium to reconsider the transfer decision. 

The advocates included, among others, Krishnakant Vakharia, Bhalchandra Shah, Vasuben P Shah, Shirish Sanjanwala, Mihir Thakore, Yatin Oza, Saurabh Soparkar, Mihir Joshi, Prashant Desai, Rustom Marshall, Manish Bhatt, Yogesh Lakhani, Percy Kavina, Deven Parikh, Rashesh Sanjanwala, Dhaval Dave, Shalin Mehta, Mehul Shah, Anshin Desai and Navin Pahwa. All big legal names in Gujarat.
The letter stated that Justice Kureshi is currently the senior most judge of the Gujarat High Court after Justice MR Shah who has been recommended for elevation to the Supreme Court and Justice KS Jhaveri who is currently the chief justice of the Orissa High Court. 

"He is one of the finest judges of the High court who is well respected for his intellect as well as for his dignified conduct both on and off the Bench. Even a brief look at his judgements would make it apparent that he decides without fear or favour as indeed every judge must."
The letter points out that there were whispers going around for quite some time that Justice Kureshi would be sidelined because many of his judgements did not find favour with the present dispensation.
”The sudden transfer of a senior judge, otherwise in line for appointment as acting chief justice of our court to puisne judge at number five in seniority in another court, sends an absolutely wrong signal, affects morale of independent judges and does great disservice to the institution”, the letter said.
It reiterated that in the past, the country has witnessed attempts by an assertive Executive to subvert and overwhelm the judiciary as it was the only institution which could rein in their misuse of power.
"An individual judge wages a lonely battle at great sacrifice and risk. If at times like these, the institution does not stand behind a judge as his or her pillar of strength and lend support, it would be failing in it’s constitutional duty at a crucial moment in our country’s history”, it stated.
The GHCAA president who along with his office bearers called on Chief Justice Gogoi and had more than an hour’s meeting, refused to divulge the details, but said that their decision to postpone their strike should be indicative enough. "The meeting was constructive”, he added.
Lawyers, across the board, have nothing but praise for Justice Kureshi. "Even as a lawyer, soft spoken Justice Kureshi’ s integrity was above board. He is a rock solid judicial person. It has never mattered to him who a person is, whether you are the junior-most or the senior-most. He is a judge of meticulous credentials, unimpeachable integrity and unassailable grace”, is how veteran legal luminary Krishnakant Vakharia describes him. Another legal veteran, Sudhir Nanavaty too had nothing but praise for him.
Senior advocate and former president of the Supreme Court Bar association Dushyant Dave termed the transfer of justice Kureshi as the last straw on the camel’s back and voiced concern whether the judiciary could recover from this move to assert its strong independence and impartiality, at least in Gujarat.
"One really wishes that the Collegium, especially of the extraordinary caliber as at present, would venture to cross-check the input or materials that concerned authorities may have placed before the collegium from independent sources, especially members of the Bar and former Supreme Court judges who came from Gujarat high court”, he stated.
Oza said that Justice Kureshi was being penalized by the present government for his judicial pronouncements. These pertained to the lokayukta case in which he had ruled against the Narendra Modi- led Gujarat government by upholding the decision of the governor in appointing retired Gujarat High Court judge RA Mehta to the post and for his decision to send Amit Shah, now BJP president, to judicial custody in the Sohrabuddin alleged fake encounter case. 

"The lokayukta order of the Gujarat High Court was subsequently upheld by the Supreme Court”, he points out. Numerous other lawyers echo this line of thought.
On his part, Justice Kureshi remains unperturbed. He has shunned all media efforts to seek out his views and dutifully joined his new charge in Mumbai.
The highly respected judicial officer has a Gandhian legacy. His grandfather, Abdul Kadir Bawazeer, was a close friend and lifelong associate of Mahatma Gandhi and came to India along with him from South Africa. His father, Hamid Kureshi was born in the Sabarmati Ashram and grew up playing in the lap of the Mahatma. 

He was a Gujarat High Court advocate and was the head of the Sabarmati Ashram Preservation and Memorial Trust. He passed away in 2016. In keeping with his last wishes, he was cremated as he did not desire to waste space which would otherwise go in the ritual burial.
With such an illustrious legacy, it is no wonder that Justice Kureshi too has made a mark in his field.
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*Senior Gujarat-based journalist. Blog: Wordsmiths & Newsplumbers