The concept of collective conscience is clearly a myth and should not be invoked while deciding cases involving the death penalty, says the author.
Author
Anurag Bhaskar, Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Summary
India’s legal doctrine of “collective conscience” cannot be traced back to the original concept as propagated by French sociologist Emile Durkheim. The consistency with which this concept has been used by the Indian judiciary while imposing the death sentence, compels us to contemplate how it has been applied. An attempt is made in this article to present the flaws in the concept of collective conscience and in its application in India.
The retentionists of death penalty in India often rely on the “rarest of rare” doctrine propounded in the decision of the Supreme Court in Bachan Singh v State of Punjab (1980). However, studies have shown that there has not been a single case of death penalty that has not been justified for the sake of the collective conscience of the society (ACHR 2015). For more than three decades, the Supreme Court has often held that the “the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.”
The collective conscience doctrine seems to have out-driven all other theories, including the “rarest of rare” doctrine, in the existing debates on the death penalty. We are, therefore, confronted with the question of whether hanging an individual in the name of collective conscience of society is justified. However, before analysing this question, one needs to understand the origin and application of the term collective conscience. For the purpose of this article, those judgments of the Supreme Court and high courts have been heavily relied upon, which evidently reflect the flaws in the concept of collective conscience.
Published in: Economic & Political Weekly
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