What is the Caste of India’s ‘Collective Conscience’, Your Honour?

The only positive thing about the judgment delivered by a Scheduled Caste-Scheduled Tribe court in the Hathras case is that it did not charge the victim, who belonged to the Valmiki caste, with conspiracy against the ‘upper’ caste Thakurs of Hathras.

Otherwise, in the case of the alleged gang rape and murder of a 19-year-old Dalit woman by four ‘upper’ caste men, the court dropped the gang rape charges against all the four accused and acquitted three of them of the murder charge, punishing only one on charges of culpable homicide and atrocity. 

This appalling judgment raises a serious question about the impartiality of the judiciary, especially when the accused are from ‘upper’ castes and the victims are from marginalised communities like Dalits or Muslims. 

While comparisons are usually odious, juxtaposing the Hathras case against the 2012 Nirbhaya gang rape case shows that the thinking of the judiciary often depends on the social status of the victim. In Nirbhaya’s case, all the accused but one were awarded death sentences because what they did to the woman was so abhorrent that the ‘collective conscience’ of the nation needed to be satisfied. But in the Hathras case, it seemed, there was no ‘collective conscience’ to appease. Was this because the victim was a Dalit? A look at some cases that evoked the judicial rationale of ‘satisfying the collective conscience’ and some cases that did not, demonstrates the answer to this question.

Principles of justice

According to a 2016 study by the National Law University, Delhi, 72% of the Delhi courts’ judgments that awarded death sentences, 42% of the Madhya Pradesh courts and 51% of the Maharashtra courts cited “satisfying the collective conscience” as a major judicial rationale. Another study by the same institute reveals that by 2016, more than 75% of the convicts sentenced to death belonged to Dalit, other backward classes (OBC) and minority communities. 

Two questions arise from the reaction of society and the courts in such scenarios:

1) Has a death sentence in such crimes ever acted as a deterrent in a society where misogyny and patriarchy are not only structural but encouraged by the state and society?; and
2) Is the collective and judicial conscience of society equally disturbed and shocked by every abhorrent crime or does its shock depend on the social backgrounds of the victims?

The answer to the first question is provided by the way humanist and reformatory jurisprudence has evolved from retributory jurisprudence in liberal democratic societies. Mature democracies have conclusively dispelled the myth of the deterrent value of a death sentence in abhorrent crimes, especially in the absence of structural measures aiming at gender sensitivity and representation and a democratic polity and society.

Also Read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape

The answer to the second question is horrific, since the collective conscience of Indian society and hence the judiciary has mostly been not only selective on the basis of the social background of the victims, but also predictable due to the fact that the collective is divided on caste, religion, gender, class, etc.  

Yet, when according death sentences to convicts, the Indian judiciary has been using the gospel of “the collective conscience” ever since the famous Machhi Singh vs State of Punjab case of 1983, when the Supreme Court codified the circumstances under which death sentences could be awarded in these terms

“When the collective conscience of the society 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.”

Subsequent judgments further conceptualised the award of a death sentence in situations “where barbarity of the offence, social positions of the victims and the perpetrators, abhorrence it creates in the society if the death sentence is not awarded, etc, were to be considered as aggravating circumstances”.

In the Nirbhaya gang rape case of 2012, the Supreme Court rationalised its judgments in these terms

“While determining sentence in heinous crimes, judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.”

But the application of these parameters has been discriminatory time and again, especially when the victims belonged to the Dalit and Muslim communities. 

For example, in the Hathras case, the dying statement of the 19-year-old victim was rejected by the district court on the grounds that the woman had been “tutored” by outsiders since the case was “politicised”. But no other compelling evidence could be produced by the prosecution because the case was registered by the police only 11 days after the rape. 

The court also considered the regular visits of the accused to the victim in the hospital not as continuous and overt intimidation by the ‘upper caste’ Thakurs, but as a sign of their good conduct and a strong piece of evidence that they had had no intention to kill the woman. 

Even the outrage of society in the form of mass demonstrations all over the country was misunderstood by the court. Instead of perceiving these demonstrations as “expressions of the shock of the collective conscience of society”, it saw them as part of a political conspiracy. 

In the case of Nirbahya, however, her dying statement and the public demonstrations against the rape were considered strong enough factors to compel the award of a death sentence.  

Representative image of lady justice. Photo: Tingey Injury Law Firm/Unsplash

Selective conscience?

The Nirbhaya case can also be compared with the Khairlanji and Bikis Bano judgments. 

In the case of Nirbhaya, the Supreme Court observed:

“The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do.”

In a concurring but separate judgment, Justice Banumati observed:

“The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed shocks the collective conscience of the society. The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’.”

Thus the bestiality, hunger for violence, empowered position of the accused, perversity, etc. in the Nirbhaya case and how it shocked the “collective conscience” of the society were both cited as adequate and fulfilling conditions for the award of a death sentence. 

Compare this judicial rationale with the judgment in the equally gruesome, diabolic and dastardly acts of gang rape and murder in Khairlanji and also in the case of Bilkis Bano. 

On September 29, 2006, Sureka, Priyanaka, Sudhir and Roshan from a poor Mahar Buddhist family in the remote village of Khairlanji, Maharashtra, were hounded by armed murderers belonging to Savarna castes of the same village. The accused paraded them naked, beat them with rods, inserted blunt weapons into the private parts of the girls, crushed the private parts of the boys with stones and then thrashed all four of them with blunt weapons till they died. Later, their dead bodies were thrown into a channel. 

There was a planned conspiracy on the part of the perpetrators to destroy the evidence and underplay the incident as the outcome of an extramarital relationship. Only after a continuous and militant movement staged by Dalits and progressives all over Maharashtra and other parts of the country were the culprits arrested. 

Even though the lower court awarded death sentences to eight of the accused, the Bombay high court reduced the sentence to 25 years of imprisonment. After an appeal against this was made in the Supreme Court, its 2019 judgment first deliberated this question:

“Whether the case in hand falls in the category of rarest of the rare cases and the offence(s) committed are of the gravest nature, such that no punishment less than the death sentence will suffice? (sic)

Then it came to this conclusion:

“On an in depth consideration of the facts and the circumstances in which the ghastly crime of taking away the lives of four innocent persons took place, we find that … the High Court rightly deemed it appropriate that the instant case does not fall amongst the exceptional category of ‘rarest of the rare’ cases where the extreme penalty of death and death alone must be inflicted.”

But how different was the Khairlanji case from the Nirbhaya case in its inhuman barbarity, planned conspiracy, casteist vengeance and haplessness of victims? And why did the court not find it necessary to satisfy the collective conscience of the Dalit community and other marginalised sections of society? 

In the Bilkis Bano case, a pregnant woman was gang raped with animalistic perversity by 11 Hindu ‘upper’ caste men while her three-year-old son’s head was pounded on a rock, which killed him, and six other persons accompanying her were brutally massacred. 

But the higher courts did not consider this a rarest of the rare type of case. Nor did they feel the necessity to satisfy the ‘collective conscience’, which was not only shocked but terrified. Instead, the accused were sentenced to imprisonment for 14 years. Last year, their sentences were remitted due to good conduct and they are now roaming freely in society.

Also Read: Death Sentence as ‘Collective Conscience’ Is a Fraud Upon Justice

Judicial question or political?

Addressing a criminal appeal against the remission of the convicts in the Bilkis Bano case, the Supreme Court asked the petitioners: “Merely because the crime was horrific, is remission wrong?” 

Your Honour, why are the rights of convicts upheld when the victims are Dalits and members of minority communities and why are the right of victims invoked when the victims belong to Hindu ‘upper’ castes?

Why are the principles of “satisfying the collective conscience” not extended to cases where the collective conscience of Dalits and minority communities is shocked? 

What is the caste and religion of the “collective conscience” of India, Your Honour?

This article was first published on The Wire.