Former Supreme Court judge Justice Madan B. Lokur has described it as a “great loss to the judiciary and justice delivery system” that Justice Akil Kureshi was never elevated to the apex court.

Justice Kureshi, who retired earlier this month, had as a Bombay High Court judge in 2010 sent BJP heavyweight Amit Shah, now Union home minister, to CBI custody in the Sohrabuddin Sheikh fake encounter case.

Justice Lokur’s views are shared by many in the legal fraternity, who admire Justice Kureshi for his fierce independence.

Justice Lokur is himself known for his independence — he was one of the four apex court judges who held an unprecedented news conference in January 2018 to accuse then Chief Justice of India Dipak Misra of selective allocation of cases to preferred benches.

The Narendra Modi government’s stance on Justice Kureshi had become clear when it blocked his elevation as chief justice of the prestigious Madhya Pradesh High Court, which has a sanctioned strength of 53 judges, in 2019.

Later, when nine high court judges were elevated to the Supreme Court in September last year, Justice Kureshi was again ignored despite his seniority, causing surprise in legal circles.

Justice Lokur, a former member of the Supreme Court collegium that recommends appointments to the top court and clears those to the high courts, expressed disappointment at the treatment handed out to Justice Kureshi.

“Well, according to me, he (Justice Kureshi) is an outstanding judge. He certainly deserved to be brought to the Supreme Court. It is a great loss to the judiciary and justice delivery system that Akil Kureshi was not appointed a judge of the Supreme Court,” Justice Lokur told The Telegraph in an interview.

Asked why Justice Kureshi had been overlooked, Justice Lokur remarked: “I really don’t know. That only the collegium can answer.”

Justice Madan B. Lokur. File photo

It was in May 2019 that the collegium had recommended elevating Justice Kureshi, then a senior judge with Bombay High Court, as chief justice of Madhya Pradesh High Court. But the Centre sat on the recommendation and stonewalled subsequent informal nudges by the collegium.

On November 8, 2019, the collegium backed down and transferred Justice Kureshi as chief justice of the much smaller Tripura High Court, which has a sanctioned strength of just four judges.

Justice Kureshi had remanded Shah in custody in the alleged fake encounter killing of gangster Sohrabuddin in Gujarat in 2005. Shah was a minister in Gujarat at the time of the killing.

After the failure to elevate Justice Kureshi to the apex court last September created a controversy, he was shifted from Tripura to the larger Rajasthan High Court, which has a sanctioned strength of 50 judges. From there, Justice Kureshi retired on March 6 this year.

“But for the intervention and insistence of the present Chief Justice of India, Justice N.V. Ramana, Justice Kureshi could not have even made it to Rajasthan High Court,” a legal source said.

Justice Kureshi, contacted by this newspaper, excused himself from commenting on the subject.

In his farewell speech at Rajasthan High Court on March 6, Justice Kureshi had referred to certain comments in a recently published book by former Chief Justice of India Ranjan Gogoi, who headed the collegium that recommended his transfer to Madhya Pradesh High Court. Justice Kureshi did not name Justice Gogoi.

“Recently, a former Chief Justice of India has written his (auto)biography. I have not read it but going by the media reports, he has made certain disclosures, regarding changing my recommendation for chief justice of Madhya Pradesh High Court to (that of) Tripura High Court. It is stated that the government had some negative perceptions about me based on my judicial opinions,” Justice Kureshi said.

“As a judge of the constitutional court whose most primary duty is to protect the fundamental and human rights of the citizens, I consider it a certificate of independence.”

He added: “What is of greater significance to me is what the perception of the judiciary is, which I have not been officially communicated.”

Justice Lokur told this newspaper that the collegium system “deserves some tweaking” and that he had said this earlier too.

Asked to elaborate, he said: “A lot of things need to be done. I had given several suggestions but it seems few of them have been implemented except one or two. I don’t know whether they are still being implemented.”

One of the problems, he said, was that recommendations from a particular high court often jump the queue, affecting the overall seniority of high court judges and their subsequent elevation as high court chief justices or Supreme Court judges.

Justice Lokur gave a hypothetical example. Say, recommendations for elevation to Delhi High Court come to the Supreme Court collegium on January 1. Normally, it should be approved or rejected the same month.

However, the collegium might well approve similar recommendations from Madras High Court, say, which have arrived in February, before clearing the appointments to Delhi High Court. Thus, the seniority of the Delhi High Court judges is affected.

“So, one of the procedural changes I had suggested and implemented when I was there was that the cases of recommendations for elevation… should be first-come, first-cleared,” Justice Lokur said.

Justice Deepak Gupta, another former Supreme Court judge known for his forthright views, said Justice Kureshi was one of the finest judges and one whom he counted among his “close friends”.

“When he (Justice Kureshi) himself does not want to speak on the issue, I don’t want to say anything on the matter,” Justice Gupta said.