This week, we intend to address a fairly sombre issue: the death penalty (and we don’t mean the punishments by pollution all those in Delhi have been undergoing). As a result, there will be no crass jokes about how chokers are in fashion these days. We will also avoid jokes about how hanging unto death could make our eyes pop better than Loreal eyeliner.

Specifically, let’s address the recent string (pun unintended) of decisions from the Supreme Court awarding the death penalty.

Let’s not even talk about the age-old issue that the decision to award the death penalty or not seems to be largely based on the judge. Since the allocation of these matters to the bench headed by J Nariman, there appears to have been a spate of cases in which the death penalty has been awarded after a lull during which the death penalty was as out of vogue as honesty in politics.

This seems to make the CJI not just the master of the court’s roster, but also of the gateway to hell (let’s face it, even if they don’t deserve to be hung, those guys aren’t going to heaven).

Retroactive death by majority

For a better idea of what’s been happening, let’s take a look at two recent decisions (Manoharan vs State By Inspector Of Police (here) and Ravi vs The State Of Maharashtra (here)) in which Nariman and Kant JJ, forming the majority, awarded the death sentence even as the third judge dissented.

Both were cases of child sexual abuse along with murder. However, both these offences were committed prior to the amendment of the POCSO permitting the death sentence to be awarded for the rape of a child (even without murder).

The bench observed that because the central government now believes that child sexual abuse ought to be punished with death, it ought to be awarded.

This logic is perilously close to retrospective application of the law as a subsequent law is influencing the application of a pre-existing law. Sitting in appeal over trial court and high court decisions pronounced prior to the amendment, the Supreme Court stated that in light of ‘these circumstances’ (of the amendment), the subordinate courts have come to the right conclusion.

G.P. Singh is going to have to add a new chapter on subsequent legislation being a tool of interpretation to his treatise.

In the first of the two cases, J. Reddy dissented. He relied on the now-settled position that the sentence must be proportionate to the role played by the accused persons.

The mastermind (already dead) ought to be given the capital sentence, and the accused before the court should be awarded a life sentence. Nariman and Kant JJ. disagreed. This refusal to give the follower a little more leeway than the mastermind taught us the true value of listening to our teachers in school. Every time we used the excuse that we were merely following our more mischievous friends, they’d go, ‘Voh kuein mein kudega toh tu bhi kudega kya? Nahin na?’.

Future crime

The majority in their decisions also refer to the idea of ‘future dangerousness’, that the person if released is likely commit another crime.

For a moment, let’s ignore the fact that the judges now have the option of ordering that the person be kept in custody for the rest of his life where he could not commit any more crimes.

Assuming the bench was very concerned about the harm the accused may cause to himself (lol, they want him to die, but anyway), let’s look at some of our other efforts at predicting things. Don’t even get us started about the Indian Meteorological Department. For those who say, but that’s weather, this is humans, we decided to send out a few emails about human-based prediction mechanisms.

Mrs. Hillary Clinton and Mr. Vajpayee replied, they say that opinion polls cannot predict the outcomes of elections. Fine, Mrs. Clinton, we know people were too ashamed to tell pollsters that they preferred a clown over you. In that case, let’s look at a more scientific method of predicting things than surveys.

The Duckworth Lewis System in cricket is supposedly based on science. And yet, it would have asked India to score 223 from 40 overs in reply to New Zealand’s 211 in 46.1 in the 2019 World Cup semi-finals, a task which proved impossible even in 50 overs on the next day. But while the scientific prediction in case of cricket is merely about winning or losing a game involving 22 full-grown men running after a ball, predictions during capital sentencing are about life and death, literally!

The American Psychiatrist Association has submitted in a US Court that 2 out of 3 predictions of future dangerousness are incorrect. Our horoscopes in the newspapers are accurate more frequently than that.

Our aim here was not to make you suddenly change your mind about the death penalty, but to point out that the quality of reasoning that goes into awarding these sentences is about the equivalent of the cover-up job the murderers did in trying to get away with the crime.

A parting remark for every reader who thought, “Death mat do, lekin rapists ko castrate kar dena chahiye. Saudi mein bhi hota hai.”- Saudi also thinks that drinking, voting, speaking your mind and women driving are bad ideas. As our teachers would have said ‘Saudi karega toh tu bhi vahi karega kya?’

P.s.: We have become aware that this piece is now as irrelevant as trials in this country, given that death sentences are just handed out by firing squads upon Twitter requests. But we decided to be as lazy as VC Sajjanagar and run the piece regardless.

The author of Straight from the Bar is an advocate. Alex and Gita are pseudonyms. The post is satire. Mostly. Previous week’s and other columns in the series are available here.