Collective Conscience: A Benchmark for Sacrifice
As the 2012 Delhi gang rape and murder convicts kept exhausting their legal remedies, they also moved closer to the gallows. When the Supreme Court upheld the death penalty of these convicts in 2017, it invoked the doctrine of “collective conscience”. In its judgment (Mukesh and Anr. V. State for NCT of Delhi and Ors.), the Court said: “When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of the public in the administration of criminal justice system.” The phrase ‘collective conscience’ appears at least thirteen times in the judgment. The judgment also heavily relies on Machhi Singh (1983), in which the doctrine was applied by the Supreme Court for the first time in its death penalty jurisprudence.
The use of the phrase ‘collective conscience’ has legitimized the death penalty as a method of punishment in India. It has obscured the real problems of India’s criminal justice system and as a result of Indian society as well. Its misapplication can lead to stifling of individual freedom and when properly scrutinized, the doctrine remains a faulty one as its application to the death penalty cases show. It treats individuals as means rather than ends in themselves.
The doctrine has sociological origins. Emile Durkheim, a French sociologist of great eminence, formulated the doctrine extensively in his first major work The Division of Labour in Society. His religious training and his subsequent nurturing in a strongly cohesive Jewish community made him an enthusiast of group solidarity. He defined collective conscience as “the totality of beliefs and sentiments common to average citizens of the same society…” The doctrine shapes many of his ideas in the book. For example, when Durkheim argues against Herbert Spencer’s radical individualism, he argues for the collective integration of individuals in a society. Similarly, his theory of punishment is also an extension of ‘collective sentiments’. He writes, “…an act is criminal when it offends strong and defined states of the collective conscience.” According to Durkheim, passion is the soul of punishment and ceases only when exhausted. Thus, social reality is a group concept having social integration as a core value and the stronger the group, the more unified it is. Does this rigid idea of group identity stand the scrutiny of a basic constitutionality test?
In countries where the foundations of any particular religion are strong, collective sentiments have often been invoked to stifle dissent, individual liberty, and thought. The application of this doctrine goes against democratic principles, modern thought and the idea of individual freedom. While introducing the Draft Constitution during the Constituent Assembly Debates on 11th of November, 1948, B.R Ambedkar remarked, “I am glad that the Draft Constitution has…adopted the individual as its unit.” Reflecting on this A. C. Guha said on November 6, “The individual is the soul of the whole constitution…” The Supreme Court has often upheld individual rights as opposed to group autonomy. When Justice Chandrachud ruled in Indian Young Lawyers’ Association that the issue of temple entry of menstruating women was more about “freedom from societal oppression” than about religion, it was an affirmation of radical individualism as against the cohesive nature of several social realities. The Court also recognized, in this case, individual liberty in matters of thought, expression, belief, faith, and worship. Similarly, in Joseph Shine, the Supreme Court said, “Individual dignity has a sanctified realm in a civilized society.” In Bariyar (2009), the Supreme Court noted, “The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations.” It is thus individualism and liberty that collective conscience stands in direct contrast with.
Application to Death Penalty Cases
As mentioned before, the doctrine was applied for the first time in Machhi Singh to justify the use of death penalty expanding the ‘rarest of rare cases’ doctrine, as formulated in Bachan Singh(1980), to cases where the Court believes that the ‘collective conscience of the community is shocked’. Machhi Singh was a case of extreme brutality involving the killing of seventeen people in a single night. Since then, the doctrine has been employed in a variety of cases. In M. Mannan (2011), the Supreme Court upheld the death sentence of a rape and murder convict of a minor girl. In Vasanta Sampat Dupare (2017), involving the rape and murder of a four-year-old girl, ‘collective conscience’ was invoked to impose the death penalty upon the convict even though (as it was argued) he had shown signs of reform and rehabilitation. In Afsan Guru (2005), the Parliament attack case, the term was given as a pretext to the court decree confirming the death sentence of Mohammad Afzal, convicted of criminal conspiracy in waging war against the government.
How do judges determine ‘collective conscience’? What are the considerations that influence the judge while deciding the conscience of Indian society? Does government or media influence this judgment of sentiments? Is it possible to determine ‘collective sentiments’ in a multicultural country like India? Does the unequal and inconsistent sentencing violate the equality clause of the constitution? It remains unclear as to how judges determine the sentiments of society. This discretion given to the judges to determine the mood of society violates the principle of equality and impartiality laid down in the Constitution. The interpretation of one judge may vary with that of another and may thus encourage inequality in the delivery of justice. The Court had warned against this in Bachan Singh when it said: “that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion…” It also said that Judges “have to resist the temptation to substitute [their] own value choices for the will of the people.” In Rameshbhai Chandubhai Rathod (2009), Ganguly J. noted that the “cry for justice’ is not answered by frequent awarding of the death sentence on a purported faith on `deterrence creed’. Before choosing the option for a death sentence, the Court must consciously eschew its tendency of `retributive ruthlessness’.” This question of violation of Article 14 of the Constitution by the “uncontrolled and unguided discretion in the Judges to impose capital punishment” was also raised in Jagmohan Singh (1973) and continues to remain relevant today when the ‘passionate’ cry for ‘collective conscience’ is undermining our core constitutional principles and the foundations of justice.
It will not be wrong to assert that the doctrine contains traces of utilitarianism (my assertion) because we deem punishment to be a ‘collective reaction’ to serve collective ends or satisfaction. Since they “have violated certain rules of conduct”, India’s collective satisfaction lies in punishing them “to maintain the integrity of India’s conscience”. The application of this doctrine, to satisfy majoritarian aspirations, undermines individual rights. One, by hanging a person to satisfy India’s ‘collective sentiments’, we deny him/her the right to dignity, a core constitutional value. Death by hanging is a barbaric and cruel method of inflicting punishment. Two, Retribution is a thing of the past; reformation is the need of the day. Purpose, not passion, should be the aim of punishment. Three, an overwhelming majority of the death-row convicts are economically vulnerable and socially marginalized. According to the Death Penalty India Report published by National Law University, Delhi, almost three-fourth of the prisoners are economically vulnerable. 63.2% of them are either the primary or sole earners in their families. 76% of prisoners sentenced to death in India belong to backward classes and religious minorities. Their education also points to their vulnerability in society and institutions. 23% of prisoners sentenced to death had never attended school, according to the report. A further 9.6% had barely attended school but had not completed even their primary school education, while 61.6% of prisoners sentenced to death had not completed their secondary school education. A huge majority of them happen to be the sole or primary earners for their families. Any justice system should consider these factors before formulating a proposition based on collective sentiments.
In his preliminary remarks to A Theory of Justice, John Rawls writes that justice is the first virtue of social institutions. Justice does not allow, writes Rawls, that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Even if their sacrifice benefits us by satisfying India’s ‘social conscience’, whether it serves justice remains to be examined. These convicts are already the victims of a social and economic arrangement which is far from just. Imposing such barbarity upon them does not fulfil India’s social goals.
Phrases that India’s institutions use to justify an action can sometimes dangerously traverse popular vocabulary taking the form of mob justice. When the Hyderabad veterinarian woman was raped and murdered (burnt alive, in fact) by her perpetrators, a parliamentarian called for the mob lynching of the accused men. The men were eventually killed in an ‘encounter’, but the emotive words of the parliamentarian, calling for public justice were reminiscent of a paragraph I once read in Fanon’s seminal text on colonialism The Wretched of the Earth. The words are quoted from The African Weekly addressing the princes of the regime thus: “…your wealth forms a hard shell which prevents your seeing the poverty that surrounds you.” The result of the “cry for justice” of the parliamentarian was that India’s ethics of a fair trial and procedural justice were undermined resulting in a controversial ‘encounter’ of the accused men.
The central argument, therefore, is that the ‘satisfaction of collective social interests’ by hanging the poor and the marginalized of the society will neither help us improve India’s criminal justice system nor will it stop crimes against women. The answer to India’s most basic questions lies elsewhere. It lies in providing socioeconomic justice, substantive equality and the refinement of India’s institutions.
(This Perspective was published in the September 2020 print issue of Mountain Ink.)
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Aurif Muzafar is a Constitutional Law & Human Rights lawyer based in Kashmir.