India’s legal doctrine of “collective conscience” cannot be traced back to the original concept as propagated by French sociologist Emile Durkheim. The consistency with which this concept has been used by the Indian judiciary while imposing the death sentence, compels us to contemplate how it has been applied. An attempt is made in this article to present the flaws in the concept of collective conscience and in its application in India.
Considering the case of women death-row convicts, the relations between gender, crime, and punishment need to be examined to better understand the inefficacy of death penalty from a position of gender justice.
The rationale that the death penalty acts as a deterrent, especially in cases of rape, is flawed because it fixates on retribution rather than rehabilitation.
Grandiloquence and India's ministers are usually inseparable. The deputy prime minister has proposed a new legislation which will make the death penalty mandatory for crimes against women. The defence minister has chosen to go one better. But the ministers should cut down on their hyperbole and concentrate on relatively small matters, such as the nightmare a 27-year old housewife, resident in the village of Balaghat in the district of Jabalpur in Madhya Pradesh, has been going through since last July.
In a country like India where extreme social stratification and increasing social turmoil are likely to sharply affect the ideas and opinions of people, including judicial officers, putting in human hands the discretion to take life can be quite dangerous. Conflict and turmoil apart, the very deep stratification of Indian society makes even-handed dispensation of justice a problematic thing in the best of times. We live in times of severe social turmoil and the ascendance of the extremely illiberal politics of the Hindu fanatics. As this mood catches on we are going to find the courts silently handing out more and more harsh punishments, bending backward to look at evidence from the policemen's point of view and sending more and more people to the hangman. It is in this context that the debate on capital punishment must be conducted.
