The Hon'ble Supreme Court is hearing the appeal against the conviction and death sentence awarded to four accused in the Nirbhaya Rape Case. The Hon'ble Delhi High Court had affirmed the death sentence awarded to the accused by the Trial Court. Both the Trial Court and the High Court found that crime committed by the accused fell into the category of the ‘rarest of rare’. To arrive at that conclusion, after weighing the aggravating and mitigating circumstances, the both the Trial Court and the High Court adopted the test of whether the crime had shocked the ‘collective conscience of the society’. Both the Courts i.e. all the three Judges involved concluded that it did.

The incongruous test of the collective conscience of society.

It was in a landmark Judgment of 1982 by the five Judge Constitutional Bench of the Supreme Court in the matter of Bachan Singh v. State of Punjab that the constitutional validity of the prescription of death penalty for murder was considered and upheld. It was in that case that the ‘rarest of rare’ doctrine was propounded. The Judgment in Bachan Singh’s case illustrated what may be weighed as aggravating and mitigating circumstances in each case. While concluding that death penalty is constitutionally valid, the majority Judgment held that life imprisonment is the rule and that death sentence is an exception. However, the Judgment did not insist that ‘collective conscience of the society’ should be the tested for deciding if a case is ‘rarest of rare’. In fact, the constitutional bench held that the ‘special reason’ required to be given under section 354 (3) of the Code of Criminal Procedure, 1973 while sentencing a convict to death, “…obviously means ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.” So how then did the ‘collective conscience of the society’ become the special and exceptional reason for awarding death penalty? How is the ‘collective conscience of the society’ to be determined? Is ‘collective conscience of the society’ always an indicator of the graveness of the crime or is it susceptible to influence by external factors? Finally, whether ‘collective conscience of the society’ is an infallible test to decide who lives and who dies?

It was in the 1983 case of Machhi Singh v. State of Punjab that the three Judge bench of the Supreme Court for the first time, referred to the ‘collective conscience’ of the society. However, the ratio of the Machhi Singh’s case has not been correctly followed in the subsequent Judgments. Though in Machhi Singh’s case the Court used the words ‘collective conscience’, it was never intended that the Judges endeavour to assess the conscience of the society in each case to determine if the crime can be termed ‘rarest of rare’. A bare reading of the Judgment will make this clear. The Court held that:-

“Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'Killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases 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” (emphasis mine).

However, this paragraph was immediately followed by illustrative instances when “the community may entrain such a sentiment”, which were categorised into 3 heads, (i) manner of commission of murder, (ii) motive for commission of murder and (iii) anti-social or socially abhorrent nature of the crime. In subsequent paragraphs, the Court culled out what it called the “guidelines indicated in the Bachan Singh’s case” (supra) to be applied to each case where the question of death sentence arises. Further, it also mentioned the situations in which the guidelines are to be applied. Therefore, in Machhi Singh’s case, it was never suggested that the Judges should award death sentence if they sensed that the conscience of the society is demanding death for a convict.

However, in almost all cases following the Machhi Singh’s case where a death sentence has been awarded, ‘collective conscience of the society’ is stated to be the basis for terming the crime as ‘rarest of rare’.  As can be seen from the 1996 case of Ravji alias Ram Chandra v. State of Rajasthan, where Supreme Court affirmed the death sentence awarded to the accused therein, stating that the punishment should “respond to the society's cry for justice against the criminal”. Interestingly however, since the bench went to extreme of only considering the enormity of the crime and the “society’s cry for justice”, while expressly stating that evaluation of the criminal is not germane, the decision was held to be per incurim by a two Judge bench in the 2009 case of Santosh Kumar Satishbhusan Bariyar v. State of Maharashtra, for it did not consider the circumstances relating to the criminal as per the law laid down in the Bachan Singh’s case (supra).

The extent to which society’s reaction to the crime has become an important, if not the sole consideration for terming a crime ‘rarest of rare’ is also evident from the Judgment in the 2013 case of Gurvail Singh alias Gala & Anr. v. State of Punjab. The two Judge bench of the Supreme Court held that:-

“Even if both the tests (aggravating and mitigating circumstances test) are satisfied as against the accused, even then the Court has to finally apply the Rarest of Rare Cases test (R-R Test), which depends on the perception of the society and not “judge-centric”, that is whether the society will approve the awarding of death sentence to certain types of crime or not.”

The Judgment of the Trial Court in the Nirbhaya rape case (supra) relies on the Gurvail Singh’s case to state that, “The Gurvail Singh's case guides us that the R-R test largely depends on the perception of the society as to if it approve the awarding of death sentence to certain types of crimes.”

This being the position, it is important to ponder on how the Judges are arriving at the conclusion whether or not the collective conscience of the society has been shocked by the crime in a given case. There is no judicial precedent on how to assess the collective conscience of the society. Our Courts do not have any mechanism to assess the mood the society, neither is any such mechanism envisaged by the legislature, as elaborated subsequently. In fact, we all know that our Judges lead a life that can be termed reclusive, with minimum interaction with the society. In 1992, the Full Bench of the Supreme Court adopted the charter of Restatement of Values of Judicial Life, which states at point 6 that, “A Judge should practice a degree of aloofness consistent with the dignity of his office.” Justice M. Lodha, who retired as the Chief Justice of India, is reported to have said to a lawyer in open court in response to an allegation against the Judges that, "I don't know if you know how much we are cut off from social life" and that except on occasions of functions "we don't get to meet people and even there it is confined to greeting only". Therefore, the inevitable conclusion to be drawn is that Judges rely wholly and solely upon the media to determine the ‘collective conscience of the society’. And this is nothing but scary, since what follows based thereon, is a decision on whether an accused will live or die.

How safe is it to rely on Media to discern the conscience of our Society?

Our media is anything but reliable. We are at a time when the media, both print and visual, is facing a serious credibility crisis. Media no longer reports, but opines news. The politico-ideological inclination of the each media house is reflected in the news that they publish. Our mainstream media is more than capable of ignoring certain important events while sensationalising some to manufacture ‘outrage’ when it suits them. Though the Nira Radia tape leak controversy exposed some senior journalists (read) (read), the fact that those journalists continue in the mainstream media, unaffected, shows that our society has reconciled to live with an unreliable media. Will our society then accept its conscience is being judged through the same media, for deciding fates of people?

The influence media wields over our society is ever-increasing. And the bias and double standards of the media in even reporting heinous crimes is appalling. For instance, killing of a person in Dadri, Uttar Pradesh in September 2015, allegedly over rumours of possessing illegally obtained cow meat, was covered meticulously by media. The wide media coverage led to huge protests nationwide. The very next month in October 2015, in Moodabidri, Karnataka a person was murdered by a group of 6 persons, allegedly for protesting against illegal slaughter of cows. This time, however, for reasons not far to seek, media did not cover the murder like it did during the Dadri incident. Consequently, there were hardly any protests like those seen after the Dadri incident. Likewise, arrest of a youth belong to a particular school of political thought from the Jawaharlal Nehru University campus in New Delhi in February 2016 under charges of sedition received unbelievably disproportionate media coverage compared to a brutal murder of youth of almost the same age, the very next week, in Kannur, Kerala, allegedly by persons belonging to same school of thought as the youth arrested from JNU. The Kannur youth was hacked to death inside his house by the mob, in front of his aged parents. However, what followed were massive protests countrywide against the JNU arrest, while the majority of the public did not even know about the murder in Kannur. The collective conscience of the society appeared to be shocked only about the JNU arrest while society appeared to be resigned to the Kannur murder.

In the study A Scholarly Agenda for the Global Alliance on Media and Gender published by UNESCO in 2014, Ms. Ammu Joseph, a journalist and media analyst writes in the context of the Nirbhaya rape case that “Today the media often determine, directly or indirectly, which cases ‘outrage the nation’ and which sink without a trace in public consciousness. In fact, media coverage of rape (and many other forms of violence against women) generally conforms to a predictable, episodic pattern: long spells of routine reports regularly, if randomly, culled from police hand-outs, broken by brief periods of intensive and extensive coverage catalysed by one or more cases that happen to grab the imagination of the media and the public – usually in that order (Joseph and Sharma, 2006, p.101). The rape cases most likely to become causes celebres today are exceptionally violent crimes committed in one of the metropolitan cities (especially Delhi and Mumbai with their high density of nationally influential media establishments), involving victims from the urban middle or upper classes and perpetrators from the socio-economic underclasses. As commentators have pointed out time and again, both the media and their target audiences tend to get particularly agitated when crimes, including sexual assault, affect ‘people like us’, while equally horrific crimes against the poor, the powerless and the distant tend to receive less media and public attention.”

A flawed test for an irreversible decision.

The usual criticism of the test is about of the possibility of the collective conscience reflecting only the majoritarian view. Far more dangerous is the possibility of ‘collective conscience of the society’ only reflecting the views of a handful of Media Mughals with a covert political agenda. Even if the conscience of the society is correctly gauged, it cannot be given effect, for it may be formed based on incorrect and incomplete facts, hearsay and rumours and wrong understanding of laws and morals.

Two crimes punishable under the same provision of the law ought not to be differentiated based on the different reaction the society may have to each case. Though it may not be in the best interest of the society to treat all crimes equally, the differentiation may be done by judicially trained minds with full knowledge of complete facts, applying settled principles of law. Judicial discretion when required to be exercised, should be exercised relying on judicial conscience. The doctrine of satisfaction of judicial conscience, though much debated, is a more accepted doctrine.

The collective will of the society is reflected in the laws enacted by the elected legislature. When our Constitution and our laws entrust and empower the Judiciary to award capital punishment, is not the Judiciary delegating the responsibility by seeking to rely on the conscience of the society? Or is this the Judiciary’s answer to the question posed by Justice P. N. Bhagwati about possibility of sending an innocent man to gallows, in his dissenting opinion in Bachan Singh’s case (supra) that, “On whose conscience will this death of an innocent man lie?”. It is very important to note that in the Bachan Singh’s case itself the constitutional bench had warned against such endeavours by Judiciary that, “….judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned.”

Even a retentionist, finds solace in the assurance that the ultimate decision to award death is taken by judicially trained and experienced minds, a decision scrutinised at multiple levels in appeal.  Is a retentionist bound to come out on streets to display his conscience, in a manner that the media notices it, to ensure that a deserving criminal will be awarded the maximum punishment?

Pertinently, principle akin to assessing the ‘collective conscience of the society’ may be to a certain extent inherent in the Judicial system of the United States, in as much as they use the Jury System, selecting Jurors from the public. In the 2002 case of Ring v. Arizona, the United States Supreme Court observed that, “In respect to retribution, jurors possess an important comparative advantage over judges. In principle, they are more attuned to “the community’s moral sensibility,” … because they “reflect more accurately the composition and experiences of the community as a whole,” … Hence they are more likely to “express the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), and better able to determine in the particular case the need for retribution, namely, “an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Yet, the influence of media coverage on Judges while sentencing convicts is frowned upon in such countries also.  A Stanford University study of 2010 (Lim, Snyder & Stromberg) found how media coverage influenced the sentencing in the court of United States. Fortunately or unfortunately, we do not have a jury system.

There has been much deliberation on ‘Media Trials’, an undesired phenomenon which unconsciously prejudices the minds of Judges and witnesses, to the detriment of the rights of parties to the trial. Our Supreme Court has held that “a trial by press, electronic media or public agitation is very antithesis of rule of law.” (read) and therefore that “to see that the administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court/High Court to prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.”(read) Incidentally, Justice Kurian Joseph, who is on the current Supreme Court bench hearing the Nirbhaya rape case, is reported to have had said in July 2015, in the context of the very same case, about the “the amount of pressure that is built” by media and recalling that a Judge who dealt with the case had told him that “had he not given that punishment, they (media) would have hung him.” Unfortunately, here we have a situation where, far from avoiding even an unconscious influence, Courts appear to be overtly relying upon media trials. More dangerous than trial by media is the present system of sentencing going by media.

Conclusion

Therefore, whereas in one case the perceivable abhorrence of the society to a crime may be engineered, while in another, the real abhorrence may be imperceivable. In the present circumstances, assessing and addressing the ‘collective conscience of the society’ while sentencing a convict to death is totally inapt. Convicts in the Nirbhaya rape case should get the befitting punishment (maybe even death penalty) for the horrendous crime, not based on the presumed conscience of the society, but as justice demands.