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Collective (Conscience) Killer?


President Pranab Mukherjee has rejected 42 and accepted seven mercy petitions during his tenure. There has been a marked increase in rejections of mercy petitions in recent years, especially, after Mukherjee assumed office in 2012. Former presidents have chosen to exercise “pocket veto” that is, delaying the presidential assent.

The most recent rejections of mercy petitions by the President are of five people charged with similar offences but in different cases. One set of rejections is for the accused cab driver and his friend of gang rape and murder of a working woman in Pune. The other set of rejections relates to two persons accused of raping and killing a minor girl. In the second case, the Supreme Court had dismissed the appeal summarily.

It cannot be overstated that a death sentence and sexual violence against women have no connection whatsoever and many women’s rights activists have spoken against cruel and disproportionate sentences. The Peoples Union for Democratic Rights (PUDR) has always advocated objective-based sentencing rather than punitive and retributive sentencing. Any criminaloffence is a reflection of the structure of the society and to punish the perpetrator alone, without addressing the structural problem, does not help. For instance, in the case of sexual offences against women like rape, the outrage which leads to harsh punishments is also because of the norms of chastity of the female body.

It is significant to take note of the Death Penalty India Report prepared by the National Law University (NLU) Delhi which has found that the majority of those sentenced to death belong to the most marginalised sections of society and are economically vulnerable and are not able to afford advocates. The system is heavily skewed against the poor, minorities, Dalits, and women. Perhaps, that is the reason that more than half of the prison population comes from these sections. In such a scenario, a death sentence not only becomes a barbaric punishment but also a tool used by instrumentalities of the state to target certain sections of the population.

The Supreme Court, in its judgments (of the cases mentioned above), has used the “collective conscience” narrative to justify the death sentence, not finding weight in the mitigating factors like unattended ailing mother, young age of the offenders, and no criminal antecedents. The Court has earlier already ruled that death can only be imposed when anyalternative option is unquestionably foreclosed. It is for these kind of errors, omissions, and impossibilities that pardoning power rests with the executive, so that what the judiciary could not take into account owing to rules of evidence and law can be seen into, and it can correct judgments so that a life can be spared where possible.

After the judgments in Bachan Singh v State of Punjab (1980) and Machhi Singh v State of Punjab (1983), the mandate was clear that the death sentence can only be in the rarest of rare cases and in order to do this an evaluation of aggravating and mitigating factors needs to be done. However, after the ruling in Dhananjoy Chaterjee v State of West Bengal (1994), the collective conscience of society became the benchmark of sentencing. Collective conscience of society is purely arbitrary as opposed to the objective tests of mitigating and aggravating factors. In such a situation, collective conscience becomes nothing but a cloak to preserve and propagate the biases of the ruling class. Gradual supplanting of collective conscience as sentencing policy of courts rather than accepted norms of proportionality and reformation has reinforced the class, caste, gender and majoritarian biases into sentencing of the convicts. It is, therefore, also important that a discourse against collective conscience be built and courts are forced to abandon collective conscience and return to reformation-oriented punishment.

The PUDR demands the (i) commutation of death sentences of the accused in the above cases; (ii) abolishing of death sentence for any crime; (iii) rationalising of sentencing policy and abolition of collective conscience as a benchmark for sentencing.

Cijo Joy, Anushka Singh



Updated On : 7th Jul, 2017


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