The new year has come and already a month has gone by. It was imperative that something be written down, if not for anything else, then to justify that "hobby" of blogging which helped me face those interviews about a decade ago. Being posted in the field gives one little time to actually write. Any field posting, including this one, gives one experience and anecdotes worthy of being written down. However, I am superstitious about commenting about what is not truly done and sealed. So, some things must be waited for. I promise that it would be worth the wait. So, for now, I would be commenting on, as the title suggests, on one of society's betting pastime of recent.
First, a clarification. People are pro or anti death penalty. I am ambivalent. With the gradual humanization of penal codes around the world, the number of countries actually practicing executions has come down drastically, so, there definitely is a hint of primitiveness to it. Most countries which are considered the most advanced, have abolished it, with the notable and quite sizeable exception of the United States! However, with the gradual (and recently, not so gradual) rightist and conservative turn in the global political narrative, there is every chance that this trend may reverse. Anyway, would the ending of classics like A Tale of Two Cities be as poignant, were Sidney Carton being sent off for 30 years in jail? Would so many narratives of Martyrs to various causes - William Wallace to Joan of Arc, to our own pantheon of heroes, exist were there no state sanctioned homicides? However, as a vessel of retributive justice, the modern capital punishment does not measure up. Criminals despatched in summary "encounters", the question about their legality aside, do sate that primal thirst for retribution quite well. Somehow, snuffing out that criminal a decade after the deed, in an anodyne setting and procedure, in full seclusion, after the media have gone riotous with human interest stories about poor chaps' poorer parents and relatives, does not do much to assuage that need. In my humble opinion, public corporal punishment would be more accommodating to that need for violence. It would degrade the criminal in front of same populace over which they asserted their physical superiority. It would do away with the stoic martyr-like imagery some sections of media like to paint, and would replace it with the spectacle of snivelling cry-babies that they actually ought to be. What's better is that it can be repeated. Unlike that one fatal drop. Thus, as I said, I am ambivalent.
Ambivalence apart, the whole theme does inspire a morbid curiosity in me. Given the salacious details that the rags are printing about the whole process the rapist-murderers would be going through, those interviews with former and future hangmen and their families, and the details of the weaves and wefts of the Buxar jail manila rope, I must guess that this curiosity is shared by a large section of the society. And why should it not? As a society, humans killing humans is not rare. It must be the world's oldest crime. Even the State killing humans is not that rare an occurrence. Most of those go through judicial scrutiny post facto. However, when it comes to a judicially sanctioned killing, we have raised the procedure to scientific perfection, nay, art. There is that stubborn refusal to let the wretch die his own death - there is a proper suicide watch. In the United States, the needle along with the whole paraphernalia is actually sterilized, the way a vaccination syringe would be - for God forbid the injectee dies of Tetanus! (Actually the reason is said to be that the red telephone might ring till the last minute before the plunger is inexorably pushed in - and were the convict to be freed, eventually, an unsterilized needle might become a tortuous liability in a litigation happy society like US.) Even in India, during the Company era, mutinous soldiers with mortal wounds were given the best medical treatment, so that they may be hanged properly later! There is the whole fetishization of the process, with the stories (quite real) of priapism, and folk lores (of course not real) about how Mandrakes (those ugly plant babies from Harry Potter universe and elsewhere) are born. (As a side note, it shall be amusing to notice the reaction of the Basilisk - petrified people, who were resuscitated using Mandrake potions, if only they knew. "You gave me WHAT to drink!?") That we enjoy a good death row story can be seen by 3 leading movies of the last year and this one - Trial By Fire, Just Mercy, and Clemency.
I must admit that I had come quite close to becoming a witness myself. The courts had handed down a rather well deserved sentence to a famous murderer-paedophile-necrophile-cannibal. Since the jail where he was lodged did not have a set of gallows, he was transferred to Meerut jail. The rituals call for the presence of an Executive Magistrate. However, at the last moment the sentence was stayed and later commuted. That really challenges one's understanding of 'rarest of rare' concept. It must surely be qualifying the instances of imposition of this penalty, and not the crime itself. For, as far as criminals go, a murderer-paedophile-necrophile-cannibal should be rarest of the rare; or at least one hopes so, otherwise, where are we going as a society?
Now we come to the present Murder and Rape case, where the convicts have ostensibly made a mockery of the legal system of this country. While the media spotlight might be making it appear as if it an exceptional case of lawyerly cunning, it is just a representative sample of what happens in the system everyday. There was a question on Quora a few years back, which I had answered as a purely general abstraction. Now I may not have decided upon judicial questions of life and death, but I have presided over enough Courts to answer this. The same may be viewed here. In summary, I had opined that most of the delay in our judicial system is caused by unstructured Interim applications - and their disposal. Most of them are malafide, the only intention being to slow down the disposal. For the interested reader, the follow up questions and answers are also quite illustrative. This present case is an illustration of a case which is stuck up in pure procedure, sans any substantive part. (For the uninitiated, the 'substantive part' of the pleadings include invocations about the curtailed life span in Kaliyug, and the atmospheric pollution in Delhi, as mitigators!) So, it is just cold calculation - unless a black warrant is issued, they would not move any petition. Once a warrant is given, they can wait till the penultimate day. Then they file a petition. Does not matter what petition. It may be totally out of the Statutes or Rulings. It may have patently absurd averments, which would be dismissed at the first hearing. Still, on the penultimate day, a petition would lie pending. Do we have a way of preventing the filing of a petition? Or is any Court of Sessions willing to execute someone whose petition is pending before a higher Judicial Authority? For petitions will come. One of the convicts had filed a criminal complaint against the primary witness / secondary victim. The complaint has rightly been thrown out by the Court. However, the whole appellate hierarchy is still available to him. Given what has been happening, each of them may start a complaint against the witness anew, in tandem. They may later impugn other witnesses. As it has been said earlier, the substance of the petition is totally irrelevant, as long as it pushes the date forward. Thus as long as we do not work on fool proofing our system against such wilful manipulation, by making the letter of procedure a norm rather than exception, this farce can continue long.
The whole nation has been riveted by the farce which has been playing out. Most of them with disgust. The convicts are well identified, and there isn't an iota of doubt about their crime, or the depravity of it all. If this is the ultimate sanction of the law, no one deserves it better. Of course, there is no doubt about how it will eventually end. Those impoverished parents and relatives from the boondocks, the subjects of our media's human interest stories, are the figurative 'bakre ki amma' (mother of the sacrificial lamb). No person who was alive in 2012 and had access to a television (or is in human contact with any person who meets the above two criteria) would mitigate their just deserts.However, as a budding scholar of law, one cannot but grudgingly admire the tenacity of the defence lawyers. They have battled this unsaid consensus, and the collective wrath of this sanctimonious society, to defend the indefensible. For such an open and shut case, these underdogs have shown a lot of fight. They have managed to pull enough rabbits out of their hat to repopulate a desert! One does not know what they may ask for next. They may seek parity with other similar death row convicts (which would be a still better argument than the Treta Yug and Kali Yug comparison). Since Courts have ruled that waiting too long on mercy petitions is a valid ground to commute even after a Presidential rejection, it may theoretically be argued that the Executive may discriminate by letting some mercy petitions linger on enough! Again, there are many other convicts, including some women, whose petitions have been (timely) rejected. To a mind as devious as one which could frame the famous Delhi Pollution defence, this should be seen as a sitting duck Article 14 petition. As I said, it is more a question of when rather than if. Whenever that happens, it would for sure leave behind a landmark case for future scholars of law, on how the defence must 'bat in the death overs.'
First, a clarification. People are pro or anti death penalty. I am ambivalent. With the gradual humanization of penal codes around the world, the number of countries actually practicing executions has come down drastically, so, there definitely is a hint of primitiveness to it. Most countries which are considered the most advanced, have abolished it, with the notable and quite sizeable exception of the United States! However, with the gradual (and recently, not so gradual) rightist and conservative turn in the global political narrative, there is every chance that this trend may reverse. Anyway, would the ending of classics like A Tale of Two Cities be as poignant, were Sidney Carton being sent off for 30 years in jail? Would so many narratives of Martyrs to various causes - William Wallace to Joan of Arc, to our own pantheon of heroes, exist were there no state sanctioned homicides? However, as a vessel of retributive justice, the modern capital punishment does not measure up. Criminals despatched in summary "encounters", the question about their legality aside, do sate that primal thirst for retribution quite well. Somehow, snuffing out that criminal a decade after the deed, in an anodyne setting and procedure, in full seclusion, after the media have gone riotous with human interest stories about poor chaps' poorer parents and relatives, does not do much to assuage that need. In my humble opinion, public corporal punishment would be more accommodating to that need for violence. It would degrade the criminal in front of same populace over which they asserted their physical superiority. It would do away with the stoic martyr-like imagery some sections of media like to paint, and would replace it with the spectacle of snivelling cry-babies that they actually ought to be. What's better is that it can be repeated. Unlike that one fatal drop. Thus, as I said, I am ambivalent.
Ambivalence apart, the whole theme does inspire a morbid curiosity in me. Given the salacious details that the rags are printing about the whole process the rapist-murderers would be going through, those interviews with former and future hangmen and their families, and the details of the weaves and wefts of the Buxar jail manila rope, I must guess that this curiosity is shared by a large section of the society. And why should it not? As a society, humans killing humans is not rare. It must be the world's oldest crime. Even the State killing humans is not that rare an occurrence. Most of those go through judicial scrutiny post facto. However, when it comes to a judicially sanctioned killing, we have raised the procedure to scientific perfection, nay, art. There is that stubborn refusal to let the wretch die his own death - there is a proper suicide watch. In the United States, the needle along with the whole paraphernalia is actually sterilized, the way a vaccination syringe would be - for God forbid the injectee dies of Tetanus! (Actually the reason is said to be that the red telephone might ring till the last minute before the plunger is inexorably pushed in - and were the convict to be freed, eventually, an unsterilized needle might become a tortuous liability in a litigation happy society like US.) Even in India, during the Company era, mutinous soldiers with mortal wounds were given the best medical treatment, so that they may be hanged properly later! There is the whole fetishization of the process, with the stories (quite real) of priapism, and folk lores (of course not real) about how Mandrakes (those ugly plant babies from Harry Potter universe and elsewhere) are born. (As a side note, it shall be amusing to notice the reaction of the Basilisk - petrified people, who were resuscitated using Mandrake potions, if only they knew. "You gave me WHAT to drink!?") That we enjoy a good death row story can be seen by 3 leading movies of the last year and this one - Trial By Fire, Just Mercy, and Clemency.
I must admit that I had come quite close to becoming a witness myself. The courts had handed down a rather well deserved sentence to a famous murderer-paedophile-necrophile-cannibal. Since the jail where he was lodged did not have a set of gallows, he was transferred to Meerut jail. The rituals call for the presence of an Executive Magistrate. However, at the last moment the sentence was stayed and later commuted. That really challenges one's understanding of 'rarest of rare' concept. It must surely be qualifying the instances of imposition of this penalty, and not the crime itself. For, as far as criminals go, a murderer-paedophile-necrophile-cannibal should be rarest of the rare; or at least one hopes so, otherwise, where are we going as a society?
Now we come to the present Murder and Rape case, where the convicts have ostensibly made a mockery of the legal system of this country. While the media spotlight might be making it appear as if it an exceptional case of lawyerly cunning, it is just a representative sample of what happens in the system everyday. There was a question on Quora a few years back, which I had answered as a purely general abstraction. Now I may not have decided upon judicial questions of life and death, but I have presided over enough Courts to answer this. The same may be viewed here. In summary, I had opined that most of the delay in our judicial system is caused by unstructured Interim applications - and their disposal. Most of them are malafide, the only intention being to slow down the disposal. For the interested reader, the follow up questions and answers are also quite illustrative. This present case is an illustration of a case which is stuck up in pure procedure, sans any substantive part. (For the uninitiated, the 'substantive part' of the pleadings include invocations about the curtailed life span in Kaliyug, and the atmospheric pollution in Delhi, as mitigators!) So, it is just cold calculation - unless a black warrant is issued, they would not move any petition. Once a warrant is given, they can wait till the penultimate day. Then they file a petition. Does not matter what petition. It may be totally out of the Statutes or Rulings. It may have patently absurd averments, which would be dismissed at the first hearing. Still, on the penultimate day, a petition would lie pending. Do we have a way of preventing the filing of a petition? Or is any Court of Sessions willing to execute someone whose petition is pending before a higher Judicial Authority? For petitions will come. One of the convicts had filed a criminal complaint against the primary witness / secondary victim. The complaint has rightly been thrown out by the Court. However, the whole appellate hierarchy is still available to him. Given what has been happening, each of them may start a complaint against the witness anew, in tandem. They may later impugn other witnesses. As it has been said earlier, the substance of the petition is totally irrelevant, as long as it pushes the date forward. Thus as long as we do not work on fool proofing our system against such wilful manipulation, by making the letter of procedure a norm rather than exception, this farce can continue long.
The whole nation has been riveted by the farce which has been playing out. Most of them with disgust. The convicts are well identified, and there isn't an iota of doubt about their crime, or the depravity of it all. If this is the ultimate sanction of the law, no one deserves it better. Of course, there is no doubt about how it will eventually end. Those impoverished parents and relatives from the boondocks, the subjects of our media's human interest stories, are the figurative 'bakre ki amma' (mother of the sacrificial lamb). No person who was alive in 2012 and had access to a television (or is in human contact with any person who meets the above two criteria) would mitigate their just deserts.However, as a budding scholar of law, one cannot but grudgingly admire the tenacity of the defence lawyers. They have battled this unsaid consensus, and the collective wrath of this sanctimonious society, to defend the indefensible. For such an open and shut case, these underdogs have shown a lot of fight. They have managed to pull enough rabbits out of their hat to repopulate a desert! One does not know what they may ask for next. They may seek parity with other similar death row convicts (which would be a still better argument than the Treta Yug and Kali Yug comparison). Since Courts have ruled that waiting too long on mercy petitions is a valid ground to commute even after a Presidential rejection, it may theoretically be argued that the Executive may discriminate by letting some mercy petitions linger on enough! Again, there are many other convicts, including some women, whose petitions have been (timely) rejected. To a mind as devious as one which could frame the famous Delhi Pollution defence, this should be seen as a sitting duck Article 14 petition. As I said, it is more a question of when rather than if. Whenever that happens, it would for sure leave behind a landmark case for future scholars of law, on how the defence must 'bat in the death overs.'
