Soli J Sorabjee Former Attorney-General of India
Secrecy is the badge of fraud. Sunlight is a good disinfectant. The above norms, applicable in the functioning of public institutions and public authorities, were recently enunciated by the Supreme Court when the its collegium decided to put its decisions and reasoning behind recommending names for appointment as Supreme Court and High Court judges in the public domain. The collegium further resolved that it will also make public the reasons for transferring a judge from one High Court to another.
This has been done in deference to the principle that transparency in government institutions is non-negotiable. It may be recalled that in October 2015, while quashing a section of the National Judicial Appointment Commission Act, a five-judge Constitution bench had said, there was need to make judicial appointments more transparent and that transparency was a vital factor in Constitutional governance. Justices J Chelameswar and Kurian Joseph, who were part of the bench, observed: “the present collegium system lacks transparency, accountability and objectivity”.
The Supreme Court took about two years to decide to put up on its website the decisions taken by the collegium and the underlying reasons. But better late than never. The resolution passed by the Supreme Court states that it has been passed to ensure transparency and yet maintain confidentiality in the collegium system. This will be a delicate task. Implementing the said resolution, the Supreme Court uploaded its decision to recommend nine names to the government for appointment as judges of Madras and Kerala High Courts.
This move by the Supreme Court is certainly a step in the right direction. Appointments of lawyers or judges to the Constitutional courts as well as the transfer of judges from one High Court to another are matters of vital importance to the public whose fundamental rights these judges will be protecting and enforcing. The Supreme Court’s decision will maintain and enhance public confidence in the integrity and impartiality in the functioning of the collegium system.
Right to Die with Dignity: Death sentence has been held to be Constitutional by our Supreme Court with the rider that it should be imposed only in the rarest of rare cases. But serious doubts exist about the manner of executing the death sentence. A petition has been filed in the Supreme Court in which the method of execution of death sentence in India—that is, hanging till death—has been challenged on the ground that the method is cruel and barbaric and that it is also against the resolutions adopted by the United Nations Economic and Social Council, which had categorically resolved that “where capital punishment occurs it shall be carried out so as to inflict minimum possible suffering”.
It is further contended that execution should be as quick and simple as possible, and should produce immediate unconsciousness passing quickly into death and should not involve mutilation of the body. The petitioner has suggested execution by lethal injection or by gunshots. A three-judge bench of Chief Justice Dipak Misra, Justices A M Kanwilkar and D Y Chandrachud observed during the hearing that prima facie a condemned prisoner should die with dignity; in peace and not in pain. The interesting question raised is whether Right to Life, guaranteed by Article 21 of our Constitution, also comprises the right to die with dignity. Further hearing has been adjourned for three weeks. The proceedings in the case will be keenly followed.
SC’s Probe on Mahatma Gandhi’s Assassination: A petition has been filed in the Supreme Court seeking further probe into the assassination of Mahatma Gandhi on January 30, 1948. The grounds in the petition are that the finding of the trial court and Punjab High Court, that three bullets were fired by Nathuram Godse from the gun at Gandhiji, are incorrect because the material facts on record show that four bullets were fired. The petitioner has also disputed the findings of the Kapur Commission in 1966. I am all for judicial activism, but not in a case which seeks further probe in 2017 when Gandhiji passed away in 1948. Let the Mahatma rest in peace.