The Indian Courts have often attributed death sentence to the collective conscience and its state of shock. Although many countries have abolished capital punishment, India seems to be rooting for its continuance. Srinithi Sreepathy explains what Emile Durkheim meant by ‘collective conscience’, and if the phrase has attained a newer meaning in Indian courts.
By Srinithi Sreepathy, a fourth-year law student from Symbiosis Law School, Noida.
In the year 2020, about twenty-thousand people were on death row globally. [i] And a total of fourteen hundred seventy-seven got executed.[ii] Though staggering, the number is less than what it was in 2019.
Have you ever wondered if the state should be allowed to sanction a life sentence? Isn’t it high time that we abolished capital punishment?
While the world is falling apart amidst a raging pandemic, forest fires and natural disasters, States are busy pushing for the death penalties.
Several sociologists have concerned themselves to understand societies’ demands for capital punishment. Different countries have different moral and legal standpoints when dispensing a life sentence. While a few countries have abolished capital punishment, many are still contributing to the death penalty data. For instance, the numbers of death penalty cases in a single country may vary from 10 to over 100 executions per year. And India is one of them.
The Indian judiciary, while sentencing the death penalties, often reasons its decision based on the affected ‘collective conscience’ of the society. The court in Machhi Singh & Ors. v State of Punjab first introduced the phrase ‘collective conscience’ to Indian death penalty jurisprudence, which eventually caught on. In India, for instance, the collective hurt, ‘social’ or ‘moral’, is often used to measure the gravity of the crime and justify the punishment. As far as a novice reading of the judgment goes, collective conscience is often understood or misunderstood as society’s collective emotion, anger and revenge against a deed.
The present article will analyse why we must move away from India’s ‘collective conscience’ doctrine. It will also interpret the meaning of ‘collective’ and ‘conscience’, inferring from Emile Durkheim’s sociological reading of punishment. And if his interpretation of punishment and society stands corrected today in the Indian context.
Emile Durkheim and the Death Penalty Discourse: Is It Relevant?
French Sociologist Emile Durkheim first proposed the idea of the ‘collective’ or ‘social’ morality in the 19th Century. Durkheim is often referred to as the Father of Sociology and a Post-French Revolution World War I functionalist.[iii]He studied social stratification, labour and punishment, among other things.
In his paper The Divison of Labour in Society, published in 1893, Durkheim discussed the relevance and lack of meting out capital punishment in highly codependent societies.[iv] The study talks about the significance of punishment as a subject of social inquiry. This means the relationship between punishment and its impact, either positive or negative, on societies.
Durkheim’s postulations, though contended, often play out in reality to this day. He called these postulations ‘Social Facts’. The paper discusses how society is influenced and managed by punishments. And how it brings people together in a universally recognised emotional bond called solidarity.
Durkheim divided solidarity into two categories: first, the pre-modern society with mechanical solidarity and the modern society with organic solidarity. He believed that all societies possessed a collective conscience (or consciousness) that united people and brought them together.
Pre-modern societies existed in the pre-globalisation age, where the populace was restricted to smaller geographies. In pre-modern societies, people essentially carried out the same duties and shared similar experiences and needs. According to Durkheim, every individual had the same value and opinions and responded similarly.
Modern societies, on the other hand, were interdependent (something Durkheim ascribed to Consumerism). People in these societies shared a state, media, government, an education system, and judiciary, each carried out by individuals with specialisations.
While pre-modern societies had social cohesion due to general homogeneity, modern societies were socially cohesive due to interdependence.
The consistency here is in his emphasis on society more than the individual. His model emphasises society’s response since he considered the former more influential and relevant than the latter.
According to him, societal outrage over a crime established that society had a conscience to get outraged in the first place. For Durkheim, if society recognised an act to be criminal and got outraged, repressive sanctions would validate the community’s conscience.
He did not believe capital punishment was necessary for deterrence as much as he thought of it as essential for re-establishing the community’s morality. Durkheim believed that society and the instruments of society were codependent units that formed a single organic whole. Durkheim even believed that crime was a natural and healthy part of society and how society functioned realistically.
Durkheim’s theory of punishment is not a rational control mechanism but rather a passion-fuelled instrument in the interest of re-enforcing collective morality. It originated from, (as J. Radhakrishnan would put it nearly a century later) the ‘social abhorrence’ of a crime.[v]
Whose Collective Conscience Is Shocked?
Although several countries had abolished capital punishments by the early 2000s, India still seems far from it. In August 2015, in its 262nd Report, Law Commission recommended abolishing capital punishment in India.[vi] Six years later, capital punishment is still a tenable option.
The problem doesn’t only stem from its presence in the criminal code but in the ambiguities present around its sentencing.
According to Indian death penalty jurisprudence, capital punishment must be awarded as the ‘last resort’.[vii] The obvious question is- why we grant a death sentence at all in a country that guarantees the Fundamental Right to Life?
In 1980, the Supreme Court heard Bachan Singh v State of Punjab. While deciding the constitutional validity of the death penalty in India, the Supreme Court stated that the death penalty ought to be rewarded in ‘extreme cases only. In the same judgement, the court also introduced the ‘rarest of rare’ doctrine for death penalty cases.[viii]
A few years later, in Macchi Singh v State of Punjab (1983), the Supreme Court established that circumstances played a role in establishing the applicability of the death penalty.
These circumstances could be both aggressive and mitigating, which may contribute to or take away from the gravity of the crime committed. In this case, ‘ collective conscience’ became a subject of interest whilst determining whether or not someone could be sentenced to death. This concept, ‘social consciousness’ by Durkheim, has since become common usage in several cases.[ix]
In 2013, in Sangeet & Anr vs State Of Haryana, Justice Radhakrishnan criticised the ‘rarest of rare’ doctrine. He said that the same was not ‘followed uniformly or consistently’ and remarked that the doctrine could be applied only in socially abhorred cases. He was indicating that judgments in such ‘heinous’ cases often depended on public morality.
Durkheim’s societal differentiations became the collective morality of largely systematic societies. While differences existed peripherally, but conscience was far more deep-rooted. There is a difference in emphasis, from external to internal, from collective to individual value. However, social cohesion remains unfettered and looming.
These irregularities and ambiguities have led to a whimsical interpretation of the ‘collective conscience’ doctrine, making judgements dangerously arbitrary. Especially for cases that get continuous coverage, the courts seem to be reacting on their whims.
Such irregularities have skewed the death penalty jurisprudence in India. Nevertheless, it is essential to note that every case calls for a different kind of treatment in administering justice.
Collective Conscience or Abhorrence?
Keeping with Durkheim and India’s historical jurisprudence so far, it is crucial to draw a line between what people ‘deserve’ (or not deserve, as it may be) and what the law demands.
Durkheim’s ‘collective conscience’ does not consider collective differentiation bound to arise in diverse societies.
As the second-largest in the world in terms of its population, India prides itself on being one of the most culturally diverse countries. We are as heterogeneous as it gets. Given our differences, must India be considered a ‘collective’ at all in the Durkheim sense of the word? If not, then in prescribing a death sentence, what ‘collective’ are the courts referring to? If there is no unified collective, would the state punish following the logic of a ‘collective conscience’?
Indian masses represent themselves by voting their government or legislative bodies, interacting through courts, following or maintaining administerial functioning, and finally through the constitution. And this is as close as we get to a collective consciousness.
Establishing a collective here is a matter of social access. Our rights and duties are reflected and protected by the constitution of the country.
The media, while reflecting on society, tends to call for ‘collective abhorrence’. While we influence and are influenced by the social and news media, we are not monolithic.
As established in several cases,[x] collective abhorrence can only result in punitive punishments.[xi] The collective abhorrence reduces diverse societies to popular revulsions voiced by the dominant group.
This is not to justify heinous crimes or their perpetrators, but does the degree of social abhorrence alone call for the death penalty? Should the courts fall for a narrative that runs on media, often dictated by the whims of the state?
At present, Durkheim’s theories seem to be conflicting as they tend to oscillate from one extreme to another. His theories are often criticised for being too far and archaic for today’s social realities. Regarding punishment, Durkheim stressed it as a necessary ‘instrument’ for social solidarity. He saw collective outrage and public morality as positives but didn’t concern himself with the adverse effects of such collective outrage.
A large part of Durkheim’s world view predated the later parts of modern society or highly complex democracies like India. Durkheim wrote his paper on societal stratification and labour before propaganda controlled societies’ conscience.
Durkheim favours capital punishment at the backdrop of morally uplifting solidarity. But for moral upliftment of a collective, the doer need not swing from the proverbial noose.
For one thing, Durkheim is influenced and limited by the technology of his time. Collective abhorrence meant differently in his knowledge of ‘pre-modern’ and ‘modern’ societies. But their implications now are far from what he imagined.
‘Collective conscience’ in diverse societies is more complex as there are significant differences in culture, perception, background and history. A homogenous culture has no existence in (post) modern society. In such cases, the ‘collective conscience’ becomes a dominant or a louder narrative, often trampling the voice of the minorities.
For instance, before the Navtej Singh Johar judgement, the LGBTQIA+ communities were frowned upon morally. Even though the Victorian era morality influenced the social and moral understanding, the courts decided against the collective morality by favouring the minorities.
But the courts have failed to pose as liberally in matters of the death penalty. The Indian death penalty jurisprudence remains ambiguous.
Durkheim’s theory on social morality stands corrected. As a society, we do wish to inflict punishment on individuals for heinous crimes. Capital Punishments cannot be rewarded based on media trials and fabricated narratives. This is why we need the courts to step up and defy the apparent social and moral demand for a death sentence.
One could ask if life imprisonment will be adequate to deter heinous crimes like rape? Don’t they deserve more?
How Do You Weigh Punishment Through Affected Morals?
When defining the latitude of the punishment, it will be best to remember Jeremy Bentham, who was a utilitarian.
In his book Rationale of Punishment II, he spoke excessively about the downfalls of the death penalty. He wrote about the ‘exemplary’ features of the death penalty, and collective and personal vengeance, distinguishing between apparent versus real punishment. Unlike the latter, the former, according to him, was meant to satiate society’s vindictiveness.
For Bentham, since ‘punishment’ reduced the happiness of the person being punished, it also reduced the overall net happiness of the society. Despite the gravity of the crime, it was only humane to treat the perpetrators of the crime as humans first.
Interestingly, a school of thought that considers the ‘greatest good’ of the most significant number does not believe in retributive justice or ex post facto punishment. In fact, utilitarianism actively advocates for rehabilitation.
If social outrage calls for vengeance, then it is vital to establish if the deed justifies the ‘rarest of rare’ doctrine. Societal outrage may or may not be justified, but it can lead to miscarriages of justice. Moreover, society does not exist in a void; it is inherently dynamic. What society abhors now may not be spiteful in the future.
And unlike the impermanence of collective morals, death is definitive.
- Durkheim, E. (1964). The division of labour in society. Durkheim. New York: Free Press of Glencoe.
- Garland, D. (1990). Frameworks of inquiry in the sociology of punishment. The British Journal of Sociology, 41(1), 1. doi:10.2307/591014
- Burkhardt, B., & Connor, B. (2016). Durkheim, punishment, and prison privatisation. doi:10.31235/osf.io/hd4zu
- Bentham, J., Smith, R., & Dumont, E. (1830). The rationale of punishment. London: R. Heward.
[i] Amnesty international Global REPORT: EXECUTIONS Worldwide fewest in a Decade, death sentences fall more than one third in 2020. (n.d.). Retrieved from https://deathpenaltyinfo.org/news/amnesty-international-global-report-executions-worldwide-fewest-in-a-decade-death-sentences-fall-more-than-1-3-in-2020
[ii] Executions around the world. (n.d.). Retrieved from https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world
[iii] Functionalism is the theory where all of society and its institutions play an indispensable role in forming a single structural whole.
[iv] Durkheim, E. Division of Labour in Society (1983)
[v] Rarest of RARE ‘case’ test needs SOCIETY’S approval: Supreme court – Indian Express. (n.d.). Retrieved from http://archive.indianexpress.com/news/rarest-of-rare-case-test-needs-societys-approval-supreme-court/1072171/
[vi] GOVERNMENT of India. (n.d.). Retrieved from https://lawcommissionofindia.nic.in/reports/Report262.pdf
[vii] AIR 1980 SC 898
[ix] Anurag Bhaskar, The Myth of Collective Conscience, Economic and Political Weekly, Vol. 15
[x] Dhananjay Chatterjee v State of West Bengal (1994), Kaniram Jadhav v. State of Maharshtra (2011), Gurdev Singh v State of Punjab (2003) to name a few).
[xi] Anurag Bhaskar, The Myth of Collective Conscience, Economic and Political Weekly, Vol. 15