The Asian Centre for Human Rights (ACHR) has released a report titled “India: Death in the name of conscience”, which examines the imposition of death penalty to convicts in the name of ‘collective conscience of the society’ which is often interpreted as the ‘judicial conscience’.
The report specifically examines the manufacturing of ‘conscience’ to justify death sentence and the use of the ‘conscience’ in the judgements imposing death penalty which have already been declared as per incuriam by the Supreme Court. It also seeks to examine how ‘conscience’, which varies from judge to judge depending upon his attitudes and approaches, plays out as to decide whether an accused shall live or die.
It also highlights the inconsistency of the Indian judiciary while considering the factors and circumstances to determine between life and death in a capital punishment case.
The report states that the reliance on ‘conscience’ for imposition of death penalty is deeply flawed, fraught with malafides at every stage, and is often manufactured through scapegoating of the dispensable.
It further states that some crimes such as the ones against women and children are so gruesome and become politically significant in the light of massive public outrage that it almost becomes indispensable for the State or the prosecution to find the guilty, even if it means tweaking justice, to assuage public anger.
The report cites Nithari killings and Nirbhaya gang rape and says that the public anger is equally directed against the failure of the State and the system as much against the crimes and the criminals, which according to the report is forgotten.
The report examines 48 judgements on death penalty pronounced by two distinguished former judges of the Supreme Court, Justice M B Shah and Justice Arijit Pasayat. Both the Judges are currently serving as Chairperson and Vice Chairperson of the Special Investigation Team on Black Money appointed by the Supreme Court of India respectively.
The report attempts to illustrate how ‘conscience’ of individual judges play out the ‘collective conscience’ or ‘judicial conscience’.