On May 5, a packed courtroom broke into applause as a three-judge bench of the Supreme Court confirmed the death sentence to four convicts in the December 2012 Delhi gang rape case. A room otherwise attuned to the sound of dispassionate arguments heard a scream from someone in the crowd demanding castration of the condemned men, echoing the public mobilisation around the case as well as the near governing influence of public opinion on the verdict.
Indeed, in their concurring opinions, Justice Dipak Misra – writing for himself and Justice Ashok Bhushan – and Justice R Banumathi recognised this influence when they remarked that the crime was “bound to shock the collective conscience which knows not what to do” and a lesser punishment would “shake the confidence of the public” in the criminal justice system.
Now ubiquitous, the phrase “collective conscience” was first used by the Supreme Court in 1983 in Machhi Singh’s case, which had brought an anti-climatic end to decade-long resistance to various facets of the death penalty in India.
After the court rejected a constitutional challenge to the death penalty in 1973, the Parliament introduced “special reasons” as a judicial pre-requisite for imposing it. In the judgements that followed, the Supreme Court chose reformative justice over retribution and recited MK Gandhi’s words against harsher punishment. In 1980, the majority of four judges in Bachan Singh case restricted the death penalty to “the rarest of rare cases when the alternative option is unquestionably foreclosed”, effectively making death as punishment the exception rather than the rule. The sole dissenter, Justice PN Bhagwati, declared the death penalty unconstitutional.
Crucially, the judgement warned future judges against becoming “oracles or spokesmen of public opinion”, and directed that great weight be given to mitigating factors.
In 1983, the court struck down even the mandatory death penalty for murder by a person already sentenced to life, arguing that it compelled judges “to shut their eyes to mitigating circumstances.”
Was public opinion in the 1970s and the early 80s sliding against the death penalty? Certainly not. The impediments created by the court to the use of the death sentence were not down to judicial reflections of public opinion, but a cognisance of the thinking on punishment globally. The apex court’s judgements in this era were rich with references to the experience of other countries and constitutional courts that chose the abolitionist route without witnessing a crime surge.
This judicial movement was soon to get stunted.
Justice MP Thakkar was elevated to the Supreme Court in March 1983 and was almost immediately entrusted with authoring the judgment in a case of 17 murders. Machhi Singh and three others, sentenced to death, had challenged the sentence before the Supreme Court.
As a judge of the Gujarat High Court, Thakkar had invoked “collective conscience” as mere rhetoric in judgements covering far less serious matters such as municipality meetings. Not only had he never authored a reported judgement on the death penalty, he was the junior most of the three judges in Machhi Singh. Yet, he was entrusted the task.
In his judgement, Thakkar overlooked the warning to judges in Bachan Singh to avoid being “oracles of pubic opinion” despite his being a bench of lesser strength. The ruling instead articulated that the court must consider public opinion when deciding who must hang and endorsed the death penalty in cases where the “collective conscience is so shocked” that the society “will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion”.
Thakkar even re-imagined “rarest of rare” as comprising five factors, including brutality and extreme societal indignation. Not one of these factors pertained to the criminal. The legacy of Bachan Singh and the “rarest of rare” standard was burdened now by the rhetoric of “collective conscience”. The silence of the senior judges on this liberal factoring of public opinion despite the larger bench’s contrary view in Bachan Singh, seems inexplicable today.
Several judgements since 1983 have employed this rhetoric as a convenient heuristic and used “collective conscience” as a driving consideration. Often, this is justified by claiming that the process of delivering justice is not “judge centric” but “reflected by the will of the people”. This umbrella justification has been used across all classes of capital offences, most notably in the cases of Afzal Guru and Dhananjoy Chatterjee, in which the Supreme Court relied not upon the lack of mitigating circumstances but “a necessity” to answer the “society’s cry for justice”. Subsequently, though, in Bariyar’s case in 2009, the court warned against judicial reliance on “collective conscience”, stating that the death penalty policy may not be “attuned to public opinion”.
Despite these warnings, “collective conscience” remains entrenched in judicial imagination and reasoning as evidenced by several judgements pronounced since, including the one in the Delhi gang rape case.
Treading a dangerous path
Judicial attempts to assess the “society’s cry for justice” can be dangerous, owing to underlying prejudice in both public and media outrage. If a crime involves a spectacle of visible physical brutality, if the victim is relatable to a media-consuming and producing populace, if the crime is committed in a metropolitan area, the shrill pitch of “collective conscience” is sure to reach the verdict. The assumption of a monolithic “society” with an objective “cry for justice” creates a differing standard for unrelatable victims and popular culprits.
Further, the judicial conflation of harsh punishment as victim justice invalidates any punishment short of the death penalty, and alienates victims who cannot subject their perpetrators to the harsh penalties. The Delhi gang rape judgement would prod victims to peg closure with harsher punishments. While the victim’s family in this case received public support to their demand for the harshest punishment, families of victims without such geographical access and societal support are bound to claim injustice if a lesser punishment is given out.
Besides bias, judicial outrage for the “collective” creates a smokescreen, blinding judges to mitigating factors. In the May 5 judgement, the court was confronted with several mitigating factors such as young age suggesting the possibility of reform, lack of prior criminal conduct suggesting that the accused were not hardened criminals, the dependents of the family suggesting a negative psychological impact on those innocents in case a father or a husband is hanged. Unfortunately, the mitigating circumstances in this case were treated with a formalistic “considered and rejected” approach with “the nature of the crime” as justification, inverting the pre-Machhi Singh priorities in sentencing.
A day before the Delhi gang rape judgement was delivered, the Bombay High Court decided Bilkis Bano’s case related to 14 murders and rape of three women by a Hindu mob during the Gujarat riots in 2002. The Central Bureau of Investigation sought enhancement of punishment to the death penalty for certain accused citing “collective conscience”, but the High Court considered mitigating factors such as lack of prior criminal conduct and lack of premeditation, and rejected the plea.
Public outcry for punishment is “determinative” as it seeks to decide the punishment based on the manner of commission of the crime. The court, however, cannot face the other way in disgust, and complex issues such as the background of the accused or mental imbalance require thorough investigation by an unprejudiced mind. A populist declaration of the accused as sub-human, at play in the Delhi gang rape case, betrays our commitment to an unbiased appreciation of the circumstances of the criminal.
Further, the court may have missed an important alternative of extended life imprisonment without possibility of release as created by Swami case of 2008 and affirmed by a Constitution bench of the Supreme Court in Sriharan case in 2015.
In his opinion in the Delhi gang rape judgement, Misra has not discussed the merits of extended life imprisonment as an option, and Banumathi has simply stated her rejection of the option without reasoning. Public outcry, often emotive and seeking visible solutions, also does not consider the nuance of such harsher punishments available to the court that fall short of the death penalty. The court has abdicated its duty, especially as the death penalty can be imposed only when lesser punishments are “unquestionably foreclosed”.
Even the judicial vocabulary associated with the “collective conscience” model can create a feedback loop justifying harsher punishment in the public imagination, antithetical to the restrictive death penalty regime and further diluting the court’s duty to consider mitigating evidence. In Misra’s opinion in this and earlier death penalty judgments, sexual offenders are “monstrous”, “beastly”, “diabolical”, causing a “tsunami of shock to the collective conscience”, and “destroying the civilised marrows”. In the immediate aftermath of the judgement, TV channels read out Misra’s characterisations with approval, and called for the death penalty for all “monsters”. The circumstances related to the criminal are now a mere footnote to the public agenda. Such judicial posturing about crimes is bound to shape the public’s post-December 2012 idea of sexual violence and the death penalty, and increase space for extreme responses.
Acutely aware of the dangers of such a path, the South African Constitutional Court, while declaring the death penalty unconstitutional, observed that “public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour...It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.”
By Yash S Vijay and Preeti Pratishruti Dash are with the Centre on the Death Penalty, National Law University, Delhi