ON 8 MAY THIS YEAR, the Supreme Court of India confirmed the death penalties awarded by the Bombay High Court to Purushottam Borate, a former taxi driver, and his friend Pradeep Kokate. Their crime: the brutal rape and murder of a 22-year-old woman. The Bombay High Court, wrote Chief Justice HL Dattu in his judgment, had been perfectly correct not only in recognising that the circumstantial evidence against the pair led to the inevitable conclusion that they had committed the crime, but also in finding that the imposition of any sentence but that of death “would not meet the ends of justice.”
In confirming the sentences, Dattu also employed what has virtually become a leitmotif in cases where the death penalty is imposed: an invocation of the “collective conscience.” “The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up,” Dattu wrote, “is one such instance of a crime which shocks and repulses the collective conscience of the community and the court.”
Over the past three decades, India’s apex court has repeatedly cited the “collective conscience” to determine when to confirm death sentences. But what is this collective social conscience, and how does the court determine when it stands shocked and repulsed? Do all cases of rape and murder upset our conscience? Or is our conscience piqued only when the Supreme Court tells us that it ought to be? The history of capital punishment jurisprudence in India shows that the meaning of “collective conscience” is neither clear as a matter of legal thought, nor easily ascertainable as a matter of sociological reasoning. Consequently, in most cases where this phrase has been used, it tends to serve, as Justice Douglas Black of the United States Supreme Court once described it, as “a euphemism for an individual’s judgment.”
The phrase “collective conscience” has its roots in the field of sociology. Towards the end of the nineteenth century, the French sociologist Émile Durkheim used the notion—often interchangeably translated from the French original to “collective consciousness”—to explain how an individual might engage with his or her larger societal group. He posited that, in social situations, the collective conscience generally determines how an individual acts. This consciousness, according to Durkheim, represented a totality of the beliefs and sentiments common to the average members of a society. In his opinion, the entire bulwark of penal law—right from viewing crime as innately offensive to viewing punishment as the appropriate response—was derived from this collective conscience. “The only feature common to all crimes,” Durkheim wrote in The Division of Labour, “is that … they comprise acts universally condemned by the members of each society… crime disturbs those feelings that in any one type of society are to be found in every healthy consciousness.”
As many critics have noted, Durkheim treated the state as a natural extension of a society’s collective conscience, viewing it not so much as an entity of power and authority but rather as “the very organ of social thought,” which was “qualified to think and to act instead of and on behalf of society.” Durkheim did not, however, view capital punishment, even as a product of the collective conscience, as justifiable. Quite to the contrary, he noted, “there is a real and irremediable contradiction in avenging the human dignity offended in the person of the victim by violating it in the person of the criminal.”
Durkheim’s writings and analyses are notably absent in the Supreme Court’s judgments. The invocation of the collective conscience in determining when to award the death penalty has its possible genesis in a 1983 Supreme Court decision, Machhi Singh vs State of Punjab. This judgment followed the court’s earlier decision in Bachan Singh vs State of Punjab, where it upheld the constitutional validity of capital punishment but added a caveat that is now famous, if perhaps impossible to pin down precisely: that death sentences would be accorded only in the “rarest of rare” cases.
In Machhi Singh, the court tried to lay down criteria for assessing when a crime fell into this category—such as whether a murder was committed “in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.” In the course of this reasoning, the court referred to the collective conscience of society. The community, wrote Justice MP Thakker, would withdraw any protection against the imposition of the death penalty “when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
Notably, the judgment wasn’t establishing a specific line of judicial reasoning when referring to the “collective conscience.” Instead, the phrase was used only to analyse in what cases, in the court’s view, the death penalty appealed to society as a justifiable mode of punishment. The idea of a collective conscience did not play any further part in actually determining the sentences in the case. What the court relied on, instead, was a “balance sheet theory,” by which the judges weighed what were considered the aggravating circumstances of the crime against any characteristics of the criminal that could have a mitigating effect.
But, since Machhi Singh, appellate courts have, while citing the Supreme Court judgment as an authority, repeatedly leaned on the collective conscience to justify the imposition of capital punishment. Machhi Singh might have been aimed at reducing judges’ discretion in passing down death sentences by providing guidelines for sentencing, as it were—but by repeatedly and inaccurately relying on the collective conscience clause, later judgments had the opposite effect: they gave judges the discretion to determine what does and does not offend the collective conscience.
The Supreme Court decision in Ajitsingh Harnamsingh Gujral vs State of Maharashtra, in 2011, is a classic example of Macchi Singh being used to justify such discretion. Here, the court quoted the passage invoking the collective consciousness in Macchi Singh, then cited two subsequent cases that also relied on the phrase. One of these said, “So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer, de hors their personal opinion and inflict death penalty.” Justice Markandey Katju, who wrote the opinion in Ajitsingh, then deployed the phrase himself, writing, “the accused deserves death penalty where the murder was grotesque, diabolical, revolting or of a dastardly manner so as to arouse intense and extreme indignation of the community, and when the collective conscience of the community is petrified, or outraged.”
Recently, as part of a national campaign for the abolition of the death penalty, the Delhi-based Asian Centre for Human Rights published a report, titled “India: Death in the name of conscience,” examining the role of discretion in passing death sentences. It focuses on the judgments of two former Supreme Court judges, Arijit Pasayat and MB Shah, to make a telling point: that the conscience of individual judges is often the most important factor in determining whether convicts in any case are condemned to die. As the report points out, of the 33 death penalty cases Pasayat adjudicated, the judge confirmed the award in 15. Shah, on the other hand, did not confirm the death penalty in any of the 15 relevant cases that came up before him. In 12 cases he argued for commuting the death sentences confirmed by high courts, and in the remaining three he sought to acquit the convict. In two of those, he wrote dissenting opinions against the award of capital punishment by the bench.
Strikingly, looking at two cases of a similar nature, we see that while Pasayat concluded that the dastardliness of the crime, in and by itself, merited capital punishment, Shah took a more humane view. For instance, in State of Uttar Pradesh vs Sattan, where two assailants gunned down six members of a family, Pasayat enhanced the life sentences awarded by a high court on the sole ground that the act was “committed in a brutal, diabolic and bristly manner.” On the other hand, in Om Prakash vs State of Haryana, which involved a man who murdered seven members of a family, Shah commuted a death sentence awarded earlier, citing as part of his reasoning the fact that the convict had been only 23 years old when he committed the crime, which suggested “there is no reason to believe that he cannot be reformed.”
Judges’ discretion remains integral to the manner in which such cases unfold. A few months before the Supreme Court confirmed the death penalty for Borate and Kokate this May, another bench of the court, also presided over by Chief Justice Dattu, heard the case of Kalu Khan vs State of Rajasthan. In this instance, the court reversed the award of the death penalty for rape and murder. It judged that the convict’s lack of criminal antecedents, coupled with the fact that the evidence establishing his guilt had been circumstantial, meant that “an alternate to the death penalty, that is, imprisonment for life would be appropriate punishment.”
Borate and Kokate’s lawyers had made similar arguments for their clients: the evidence against them was largely circumstantial, they were both young when they committed the offense, and they, too, had had no criminal history. But none of this appeared to deter the court from finding that the collective conscience was shocked by their crimes, and that the convicts therefore deserved to die. In Borate and Kokate’s cases, Dattu wrote, “age alone cannot be a paramount consideration as a mitigating circumstance.” Similarly, a “lack of criminal antecedents also cannot be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.”
Legally, the distinction between Kalu Khan’s case and Borate and Kokate’s cases is negligible. But while in one our collective conscience apparently demanded generosity, in the other our conscience was deemed to be so gravely upset as to mandate the ultimate punishment. Allowing capital punishment to be confirmed in this manner, based on judges’ individual predilections, deepens the disarray at the heart of India’s death penalty jurisprudence. It also comes at huge costs to human dignity, and to our constitution’s guarantee of equality before the law.