Credibility deficit: On Collegium's recommendation on Justice Kureshi

In modifying its recommendation concerning Justice A.A. Kureshi , the Supreme Court Collegium appears to have succumbed to pressure from the Union government. Modifying its resolution of May 10 that the senior judge be appointed Chief Justice of the Madhya Pradesh High Court, the Collegium has now decided to send him to the Tripura High Court . It was quite apparent that the Centre was averse to the elevation of Justice Kureshi, who is from the Gujarat High Court, but serving in the Bombay High Court on transfer. The government did not act on the recommendation for months, raising the suspicion that it was blocking his appointment. The Collegium modified its decision after considering letters from the Department of Justice on August 23 and 27, and “accompanying material”. It is not known if the controversy has ended. It is possible that the Collegium and the Centre have arrived at a compromise under which the government drops its opposition to his appointment as Chief Justice on the condition that he is sent to a smaller high court. However, until his appointment as head of the Tripura High Court is notified, there will be a lurking doubt on whether the latest resolution is in line with the Centre’s approval. Under the current procedure, the Collegium may reconsider a recommendation, but the government is bound to implement a decision that is reiterated.

It is quite acceptable if the Collegium and the government resolve their differences through consultation and correspondence, but the final decision should not be opaque, mysterious and indicative of executive pressure. It is common to charge the Collegium with lack of transparency, but in this case, the government is equally guilty. If the Law Ministry had a bona-fide objection to Justice Kureshi, it could have disclosed its opinion on his suitability. The failure to do so has the inevitable consequence of the public imagination concluding that the ruling party is blocking his elevation because of judicial orders he had passed while serving in Gujarat. As for the Collegium, it is unclear why it could not have disclosed what the government had wanted in its communications. This episode makes a dent in the prevailing narrative that the Collegium system is a shield against executive interference in judicial appointments. The time may have come for the two sides to come up with fresh clauses in the existing procedure of appointments under which the Collegium’s decisions are implemented within a time-frame, and the government’s objections and reservations, if any, are made public. Only then can the credibility deficit be bridged. But, even so, what is indisputable is that the Collegium system is deeply flawed, and is in need of urgent remedy.

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