‘Oracles or Spokesmen of public opinion’ this particular phrase defines what the image of the judicial officer will have been reduced to if they continue to use the derided sociological concept of ‘Collective Conscience of the society’ while pronouncing the death penalty as the verdict. Parenthetically the same sentence was used as a warning signifying the conduct that had to be avoided by future judges in the landmark 5-Judge bench judgement of Bachan Singh v State of Punjab (1980) by the Supreme Court wherein the court also instituted the doctrine of the ‘rarest of the rare’ which resulted in the infliction of death penalty becoming a deviation rather than the norm itself. The Judgement came at a time when there was an abolitionist air to the pronouncement of capital punishments around the world and the Supreme Court despite public sentiment at large being in favour of the death penalty in India reduced it to an exception rather than the rule in the administration of justice in India. It is this doctrine that has led the retentionists of the death penalty to raise a hue and cry against the abolition of the death penalty in the country. However, it is the doctrine of Collective Conscience which seems to override every other theory including that of the doctrine of “rarest of the rare” for most death row convicts in the country.
ORIGIN AND DEVELOPMENT OF THE CONCEPT OF COLLECTIVE CONSCIENCE
Its origin can be traced in sociology where Emile Durkheim coined the term Collective Conscience in his acclaimed work Division of Labour in Society in 1893.
According to him, it was a sociological concept that could be defined as a summation of beliefs and thoughts common to ordinary citizens of the same society forming a system having its own life. To him, the concept of Collective Conscience weighed in very heavily when determining the criminality of any particular activity because according to him the collective isn’t shocked because the action was criminal, instead the action is determined to be criminal because the Collective Conscience of the society was shocked by it.
INCORPORATION OF THE DOCTRINE IN THE INDIAN LEGAL SYSTEM
The doctrine of Collective Conscience did not form a part of death penalty jurisprudence in India initially due to the fact that the Bachan Singh judgement  was the preliminary source of death penalty jurisprudence in India it had clearly warned the judges not to determine and decide cases based on public opinion. However, this was all set to change with the judgement of the Machhi Singh& Ors. v. State of Punjab (1983) in which the Supreme Court expanded the doctrine of rarest of rare set in Bachan Singh to include and consider the doctrine of Collective Conscience to be a part of it.
The Supreme Court in Machhi Singh opined that the death penalty may be imposed in the “rarest of rare cases when collective conscience of the community 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 the death penalty.”
Since the Machhi Singh case, the Apex Court has upheld capital punishment by attesting it to satisfy the collective conscience of the society and the concept has since been used in sending many convicts in various parts of the country under several different charges to the gallows.
COLLECTIVE CONSCIENCE VIS A VIS ADMINISTRATION OF JUSTICE
The Administration of justice, in particular, the dispensation of legal justice is one of the most essential functions of a State. The interface between the blind reliance on the doctrine of Collective Conscience of the society in death penalty cases and the sanctimonious duty of the judiciary to administer justice is the most baffling and peculiar aspect of this discourse. Awarding the death penalty by succumbing to the public opinion in a case that affects the collective conscience of a society horrendously and administering justice according to the law are two very different things that may appear to be very similar. The peculiarity arises from the fact that despite the Machhi Singh judgement inculcating the doctrine of Collective Conscience as a factor in death penalty jurisprudence, the judgement did not specifically define what the concept meant which led to an unquestionable judicial perversity throughout the post- Machhi Singh period (1983- till date) which has adversely affected the entire Death Penalty system in India.
COLLECTIVE CONSCIENCE: UNDEFINED, LEAVES SEVERAL UNANSWERED FUNDAMENTAL QUESTIONS
Lack of clarity in Machhi Singh (1983)led to the rise of the questions as to its standing as a legal doctrine? Who decides whether the Collective Conscience of the society has been shocked by a particular act? What factors determine its outrage? and if so, then to what degree has it been outraged? Whether this concept will survive the scrutiny of a constitutionality test? Is it even possible to determine the Collective Conscience of a multicultural and heterogeneous country like India? and many more.
EXPECTED JUDICIAL STANDARDS EXPONENTIALLY HIGHER IN DEATH PENALTY CASES
The expected judicial standards in death penalty cases are much higher due to the heinousness of the crime and the punishment involved. Even the Supreme Court has observed in the case of Bariyar v State of Maharashtra that
“Death Penalty stands on a very different footing from other types of punishments.”
the court in Machhi Singh and Bariyar judgements while discussing the Dictum of Rarest of Rarein context of death penalty cases observed that:
“A balance-sheet of aggravating and mitigating circumstances relating both to the crime and the criminal has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.” “Another aspect of rarest of rare doctrine which needs serious consideration is an interpretation of latter part of the dictum – that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
The external factors aggravating and mitigating the gravity of the punishment are the chances of reformation, the crime profile of the individual consisting of past conduct and personality of the individual, the collective conscience associated with the case, etc.All these factors are to be considered conjunctively and not disjunctively.
COLLAPSE OF THE DEATH PENALTY SYSTEM IN INDIA
The test of Collective Conscience has led to Courts inflicting death penalties on a much frequent basis and with a lot less adherence to the standards set by the Bachan Singh and Bariyar judgements leading to an inevitable collapse of the Death penalty system in India.
DILUTION OF JUDICIAL OPINION
At a cursory glance, it seems like the judges have been given complete discretion to decide whether any act has outraged the Collective Conscience. Recent studies from the ACHR on death penalty jurisprudence in India show that in almost all of the cases of convicts who were on death row at the time of publishing of the report were sentenced to death upon invocation of the outrage to Collective Conscience. Furthermore, studies from the Project 39A extension at NLU-D studied the death sentences in the 3 most retributive states in India and came up with the finding that as many as 72% of death row convicts have been sent to the gallows on the basis of the outrage to Collective Conscience that was caused by their actions which was determined by the whims of the judges in their particular cases. It is also common to see studies that show that despite the guidelines set in Bachan Singh which demanded that the death sentence should only be given upon foreclosure of the other option(life imprisonment) and that every case is tried on the doctrine of the rarest of the rare, it is evident that in most cases where the Collective Conscience is invoked neither of these guidelines is followed and the retributive ruthlessness of the judges and courts in the country come to the forefront.
Another challenge arising out of this arbitrary and whimsical determination of the mood of the society along with the uncontrolled discretion the judges seem to enjoy in determining the shock to Collective Conscience all the while being impacted by the factors which mitigate and impact their thinking in the matter certainly seems violative of the article 14 of the constitution which guarantees equal protection of law to every citizen along with the basic values of the Right to life enshrined under Article 21.
EXIGENCY OF ABOLITION OF THIS DESPOTIC CONCEPT
There is an awful lot which can be said about the fatality of this concept but as an ending remark, all that needs our attention is the distressing remark made by the Law Commission of India –
“A sentencing court does not have the means to rigorously examine public opinion in a given matter. Also, a cohesive, coherent, and consistent “public opinion” is fiction. The opinion of members of the public can be capricious, and dependent upon the (mis) information that the “public” is provided not only of the facts of an individual case but of the criminal justice process itself. Focusing on public opinion, therefore, carries the danger of “capital sentencing becoming a spectacle in media. If media trial is a possibility, sentencing by media cannot be ruled out.” In such situations, invoking public opinion instead of focusing on constitutional standards and safeguards would defeat the entire framework elaborated in Bachan Singh.”
.Author(s) Name: Arihant Mohnot & Aman Mishra (ILS Law College, Pune)
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
DURKHEIM EMILE, THE DIVISION OF LABOUR IN SOCIETY 70-71 (New York: Free Press 1984)
Id. at 81.
Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957.
 MAHAJAN V.D., JURISPRUDENCE AND LEGAL THEORY 115 (2nd ed. Eastern Book Company, Lucknow 2017)
Santosh Kumar Shantibhushan Bariyar v. State of Maharashtra,(2009) 6 SCC 498, 69¶
Id. at 72¶
Id. at 146¶
Project 39A, Death Penalty Report, National Law University Delhi (June. 15, 2020, 11:25 AM), https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/5ebc3dc0879c75754ab23f78/1589394902371/Death+Penalty+Sentencing+in+Trial+Courts.pdf
Supra. Note 1.
Supra. Note 7.
 ANI, ACHR report examines the use of ‘collective conscience’ in death penalties, Financial Express (June 14, 2020, 10:30 AM), https://www.financialexpress.com/india-news/achr-report-examines-use-of-collective-conscience-in-death-penalties/76037/
Supra. Note 10.
The Constitution of India 1950. Article 14.
The Constitution of India 1950. Article 21.
Law Commission of India, Death Penalty Report 2015, Government of India (June. 16, 2020, 14:30 PM), http://lawcommissionofindia.nic.in/reports/Report262.pdf