Final Word

How the judiciary misappropriated the phrase “collective conscience”

01 August 2015

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.”

Suhrith Parthasarthy practises law at the Madras High Court.