DEATH PENALTY SATISFYING SOCIETY’S CRY FOR JUSTICE: A CRITIQUE
The author, Sagar Soni, is a Contributing Editor at Awaaz and a final year student of LL.B. at Campus Law Centre, Faculty of Law, University of Delhi.
On 9 May 1980, the Constitution Bench of the Hon’ble Supreme Court of India delivered a historic judgment on the issue of ‘Death Penalty in India’ in the case of Bachan Singh v. State Of Punjab whereby the Hon’ble Court provided the doctrine of ‘Rarest of Rare’ cases. Their Lordships in Bachan Singh case categorically stated that judges shouldn’t be the spokesmen of public opinion. However, a major shift was seen in the judicial approach when despite a clear indication by the Constitution Bench, the Courts started addressing ‘society’s cry for justice’ or ‘shock to the collective conscience of society’ as a relevant factor while awarding death penalty.
Discarding Bachan Singh
Post Bachan Singh, the factor of ‘society’s cry for justice’ was first considered in the case of Machhi Singh and Ors. v. State of Punjab (1983) wherein the Hon’ble Apex Court basically opined that, if the collective conscience of society is so shocked by the crime that it would expect the judiciary to impose a death sentence, then it may be considered as a factor for determining the capital punishment. Further, in the case of Machhi Singh and Sushil Murmu v. State of Jharkhand (2003), the Apex Court even observed that ‘Irrespective of the personal opinion of holder of judicial power’, the death penalty can be awarded if the shocked collective conscience of society demands so. So, it can be clearly understood that in certain cases, the society’s opinion which on various occasion is mostly backed by emotions and sentiments have been considered to have more weightage than a reasoned judicial opinion. The same observation, in one or another way, was followed in a plethora of cases ranging from trial courts to the apex court whereby such factors were considered. In a study of ‘Death Penalty Sentencing in Trial Courts’ (Published in 2020) conducted by ‘Project 39A’, it was found that in 112 of 215 cases of awarding capital punishment by trial courts in Delhi, Madhya Pradesh and Maharashtra, the factor of ‘Collective Conscience’/‘Society’s cry for justice’ was invoked. It was further observed that in 63 of those 112 cases, almost no mitigating factor was considered. Therefore, it is clearly visible that courts in India are rampantly adopting an approach that Bachan Singh explicitly discarded.
Although, the judiciary has been invoking the factor of society’s cry for justice on various occasions as explained above, but still there is a great conflict of opinion among holders of judicial powers, inside and outside the court. Starting from Machhi Singh, the consideration of society’s cry for justice in the case of Dhananjoy Chaterjee v. State of West Bengal (1994) to placing reliance on it in Mukesh & Anr v. State for NCT of Delhi (2017) and even after that; shows that there exists a great block of judicial scholarship in favour of considering aforementioned factors while awarding capital punishment. However, on the other hand, there are many pertinent judicial observations that discard consideration of such factors in death penalty cases. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) (one of the significant judgments in this context), a division bench of the Hon’ble Apex Court observed that, considering public opinion is not compatible with the Bachan Singh doctrine as the duty of the judiciary as per the constitution is to take a perspective on individual rights at a higher pedestal than majoritarian aspirations. Thereafter, in the case of M.A. Antony @ Antappan v. State Of Kerala (2018), Justice M. B. Lokur, speaking for a three-judge bench, observed that it would be wise if the impression gathered on public opinion are avoided while sentencing. Further, in Shankar Kisanrao Khade v. State of Maharashtra (2013), the Hon’ble Apex Court also doubted the confirmation of capital punishment in Dhananjoy Chaterjee (Supra) which considered the factor of society’s cry for justice as relevant. Even the Law Commission of India in its Report on Death Penalty (2015) noted that “a cohesive, coherent and consistent “public opinion” is a fiction”. So, there are various instances where such factors have been considered to be irrelevant.
Further, in a report titled “Matters of Judgment”, the Project 39A reported that in interviews with some of the Supreme Court judges, there were 11 Hon’ble judges who considered the inclusion of Collective Conscience as a relevant factor,and on the other hand, there were 15 Hon’ble judges who discarded the same. The former argued that a crime can only be judged with respect to the effect on the public as to how the public feels about it, and what the public thinks about it. But, the latter rejecting any legitimacy for collective conscience stated that it reflects the ‘Mob Justice’. Hence it can be clearly observed that judicial scholarship is divided on this issue so it becomes necessary to examine the issues related to considering such factors as relevant.
Issues in considering society’s cry for justice:
In general, the society would be shocked by every crime and the supporters of the retributive theory of punishment would definitely demand an eye for an eye. Although, the nature of crime is also a relevant factor in determining the collective conscience of society, but every act of murder or rape, etc. is indeed considered as brutal in the society. So, the first and foremost problem with this factor is to define precisely what public opinion is and to determine as to when the collective conscience of society is so shocked. As observed in Bariyar case, if such a factor is considered, then the possibility of media trial cannot be ruled out. Hence, there can also be circumstances when the cry for justice would be selective. For example, there was a huge uproar by the common public after the 2012 Delhi gang-rape and murder case popularly known as the ‘Nirbhaya case’. However, it cannot be outlined that there was no such other rape and murder case post Nirbhaya case when 77 cases of rape are reported daily in India; but the outrage or society’s cry for justice was never the same as it was in Nirbhaya case. Hence, sometimes the public opinion is also based on what is informed to them; which makes this factor less reliable and also prejudicial to the accused as observed in the cases reported in the study by Project 39A (supra) where no mitigating circumstances were considered. Such an attempt is also prejudicial because by not taking the mitigating factors into account, the courts are particularly discarding the ratio laid down in the Bachan Singh case which mandated to weigh the crime committed by the accused and his mitigating circumstance. In Bariyar case, it was also observed that judges do not engage in much discussion on aggravating or mitigating circumstances. In this way, the judiciary somehow seems to be inclined toward a majoritarian approach whereby judges are taking up a responsibility on themselves to satisfy the majoritarian call for retribution. It must be understood that judges are not the chosen or elected representatives of the people, but are governed by constitutional safeguards. Hence, it is not their duty to work as per the wishes of the public, but to consider every situation with fairness, reasonableness, and equal treatment. The public opinion MAY BE devoid of reasoning on the circumstances of crime or criminal, hence, placing reliance on such opinion would be detrimental to the criminal justice system. Further, one of the important penological goals of a penalty under a criminal justice system is deterrence. However, the studies have suggested that there is no informative research to suggest that capital punishment has any deterrence effect on homicide rates. Further, it has been also observed that there is little evidence to show that severity in punishment has a material deterrence effect, in fact it is the certainty of punishment which have been found to have more deterrent effect in crimes. The Law Commission of India, in its Death Penalty Report (supra), has also observed that death penalty doesn’t serve the objective of deterrence any more than that of life imprisonment, and it further concluded that focusing on capital punishment also affects the restorative and rehabilitative aspects of justice. Hence, it can be averred from the discussion above that taking the majoritarian call for retribution into consideration may still have no impact on deterrence, but it will surely take away the possibility of reformation of a person so sentenced.
At present time, Abolitionistic trends are going on in the world with respect to death penalty. Various countries are discarding the death penalty as a form of punishment but the legitimacy or abolition of the death penalty in India is a matter of another discussion. However, it must be considered that when the world is trying to abolish capital punishment, we should at least try to discourage such punishment especially when it is called for satisfying the majoritarian view of the society. The pertinent issues as stated above implies that relying on public opinion, and thereby discarding the possibility of reformation by not considering mitigating circumstance is against the basic principles of the Indian Criminal Justice system regarding the duty of judges as observed in Bachan Singh. In case, the legislature or the judiciary still finds it difficult to discourage the death penalty, it would be advisable to follow the precedent of the constitutional bench as courts are bound by the precedents and not by a response of the society which could be incoherent. Hence, the clear warning stated in Bachan Singh as the judges shouldn’t be the spokesperson of the public deserves due consideration in order to meet the ends of justice.
 National Research Council, Deterrence and the Death Penalty (Washington DC: The National Academic Press, 2012)
 Daniel S. Nagin, “Deterrence in the Twenty-First Century” Vol. 42, No. 1, Crime and Justice in America 1975-2025 199 (August 2013).
(The views and opinions expressed in this article are author’s own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)