A five judge bench of the Supreme Court in Bachhan Singh v. State of Punjab was called upon to decide whether the death penalty was constitutional and passed the test of reasonableness under Article 19 and 21. While upholding the death penalty as being constitutional, the Supreme Court sought to lay down objective guidelines for future benches so as to take away discretion based on subjective standards while leaving room for discretion based on objective standards such as the aggravating and mitigating circumstances. One such subjective standard that the Supreme Court specifically negated was what is known today as the ‘Collective Conscious’ of the society or the ‘public outcry for justice’. The Supreme Court in Bachan Singh cautioned future benches that “it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, if is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned. When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic.”
The Supreme Court’s caution in Bachhan Singh was rescinded three years later by a three judge’s bench in Machhi Singh v. State of Punjab¸ where the Supreme Court introduced the subjective standard of ‘collective conscience’ and ‘societies cry for justice’. The Supreme Court in Machhi Singh by introducing these vague and indeterminate standards gave discretion to individual judges to send a person to the gallows based on this subjective standard without discussing the objective criteria of the aggravating and mitigating circumstances.
THE INDETERMINATE STANDARD:
The Supreme Court through Bachhan Singh sought to weed out all subjective criteria so as to frame broad sentencing guidelines based on objective standards such as the aggravating and mitigating standards which include the age of the accused, possibility of reformation. Etc. The ‘collective conscience’ standard cannot be assessed objectively; there is no yardstick to judge the public’s mood or opinion about capital punishment in relation to a particular case until and unless a nationwide survey of some sort is carried out, and even then this standard falls foul on the principles enunciated in Bachhan Singh while also clearly falling short on the test of reasonableness and consistent interpretation under Article 14 and 21 of the Indian Constitution.
The Law Commission of India in its 262nd report on the Death Penalty opined that “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 a 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.”
The most pertinent question here might be that why do then judges resort to this subjective standard? One can only guess the answer to this question, but a careful analysis of the line of cases following the Machhi Singh standard have one thing common; first, they do not tend to discuss the mitigating circumstances which would have been in the favour of the accused thus making out a strong case for the conversion of the death penalty into life imprisonment and second, these line of judgments justify the non-consideration of the mitigating circumstances in light of the ‘societies cry for justice’ or the ‘public abhorrence of the crime’. This tendency to hide behind this illusory veil of ‘collective conscience’ renders the Bachhan Singh framework useless and perpetuates a parallel line of cases which are distinct in their sentencing philosophy thus allowing individual judges to justify their prejudices through institutional injustices.
THE DIVERGENCE IN OPINION:
The process of determining whether a case falls within the rarest of rare category involves analyzing and weighing the objective and determinate standards. The Supreme Court in Bachhan Singh moved towards a reformative approach in its sentencing policy thus further restricting the scope of cases where the death penalty could be awarded. The Retributive Theory of punishment prevalent before the introduction of Common Law in India has been slowly erased from our Jurisprudence as the Reformative Approach has now become the bedrock of our sentencing policy. The Supreme Court in Bachhan Singh laid down that, “the death penalty should not be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” The Supreme Court further opined that it shall be the duty of the State to prove by positive evidence that an offender is beyond any hope of reformation and is likely to commit a crime in the future. The diverging opinion as to the approach which is to be followed while sentencing an accused found guilty of committing a crime punishable with the death penalty has been at the heart of the controversy making it ‘judge centric’ rather than based on objective legal standards. Abolitionists cite the lack of consistent interpretation and various subjective standards adopted by individual judges as a reason for abolishing it as till date the Supreme Court has not been able to lay down a sound jurisprudential basis for retention of the death penalty.
The criticism of the subjective and indeterminate standard of ‘collective conscious’ has been voiced from within the Supreme Court itself as the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra opined that, “public opinion is difficult to fit in the rarest of rare matrix. People’s perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh” The Supreme Court again in Rameshbhai Chandubhai Rathod v. State of Gujarat held that, “we must recognize that “cry for justice” is not answered by frequent awarding of death sentence on a purported faith on “deterrence creed”. Before choosing the option for death sentence, the court must consciously eschew its tendency of “retributive ruthlessness”. Therefore, this Court cannot afford to prioritize the sentiments of outrage about the nature of the crimes committed over the requirement to carefully consider whether the person committing the crime is a threat to the society.”
Despite criticism from within, the Supreme Court has continued to invoke this standard in recent cases showing no attempt to put an end to the divergent opinion. The various inconsistent views of which only one has been the subject of scrutiny herein has led to one Law Commission Report suggesting the abolition of the death penalty in all cases except those related to terrorism. The death penalty once executed cannot be reversed and instances have happened in the past where the guilt of the accused or the sentence was doubted in subsequent decisions. This arbitrary exercise of meting out capital punishment certainly falls fouls at present on the cornerstone of our criminal jurisprudence, best summed up in the great English Jurist William Blackstone’s words, “it is better that ten guilty escape, than one innocent suffer”.
(1980) 2 SCC 684.
(1983) 3 SCC 470.
See Dhananjoy Chatterjee, (1994) 2 SCC 220; Jameel v. State of U.P., (2010) 12 SCC 532; State of M.P. v. Basodi, (2009) 12 SCC 318; Bantu v. State of U.P., (2008) 11 SCC 113; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan, (2005) 10 SCC 420; Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1; Ravji v. State of Rajasthan, (1996) 2 SCC 175; Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467 and State of Madhya Pradesh v. Sheikh Shahid, (2009).
 Law Commission of India, 262nd report on the Death Penalty (August, 2015).
 (1980) 2 SCC 684.
(2009) 6 SCC 498.
(2009) 5 SCC 740.
See Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 and Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.
Law Commission of India, 262nd report on the Death Penalty (August, 2015).
Vivek Punia, Advocate, Prosoll law Inc.