The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender,” read the Supreme Court order that upheld Afzal Guru’s death sentence.
In the days that followed Afzal’s hanging, the term ‘collective conscience’ drew flak from those who opposed the tearing hurry in which he was hanged. In a searing critique of the judgment, ‘And His Life Should Become Extinct’: The Very Strange Story of the Attack on the Indian Parliament, Arundhati Roy writes: “To invoke the ‘collective conscience of society’ to validate ritual murder, which is what the death penalty is, skates precariously close to valorising lynch law. It’s chilling to think that this has been laid upon us not by predatory politicians or sensationseeking journalists (though they too have done that), but as an edict from the highest court in the land.”
‘Collective conscience’ refers to a set of shared beliefs, ideas and moral attitudes that drives a society forward. Yet, as many sociologists have argued, no single strand of the collective conscience can be applied to a heterogeneous society. And what is right for the collective conscience in one country could be wrong according to the collective conscience of another. For instance, in the US, France and Egypt, the collective conscience is in favour of Israel’s occupation of Palestine, but the contrary is true for Cuba, Venezuela and other Latin American countries that support the Palestinian resistance.
Critics of the Afzal verdict raised three crucial concerns: One, the evidence was entirely circumstantial. Two, the court had denied Afzal’s family the right to see him before he was taken to the gallows. And three, the family was informed about the hanging by post and the letter reached them after Afzal was already dead.
The Supreme Court had convicted and hanged Afzal not on the strength of incontrovertible evidence nailing his involvement in the crime, but by citing the need to compensate for the loss of lives in the Parliament attack and satisfy the collective conscience of the society that was shaken by the attack. Clearly, public psyche is an important concern for the judiciary.
In March 2015, the public prosecutor in the 26/11 Mumbai attacks case, Ujjwal Nikam, caused an uproar when he confessed to lying about Kasab’s demand for biryani in jail. “Kasab never demanded biryani and was never served by the government. I concocted it just to break an emotional atmosphere that was taking shape in favour of Kasab during the trial,” said Nikam.
Reports on Kasab’s tantrums and demand for biryani had hit the headlines in August 2009, when the trial was at its preliminary stage. While these reports had not abetted the judgment on the case, it had enraged plenty of public sentiment. “How can we waste the taxpayer’s money on a guy who unleashed such a massive terror attack upon us?” commented Amit Sharma under one of the online news reports.
When Leslee Udwin’s documentary India’s Daughter was released on YouTube on 9 March, several critics who had asked for a delay or ban on the screening alleged that the documentary would influence the judges in favour of the convict’s appeal slated to be heard at the end of the week. The court agreed with this view when it heard two public interest litigation petitions that sought a repeal of the ban: “Media trials do tend to influence the judges. Subconsciously, a pressure is created and it does have an effect on the sentencing of the accused/ convict.” The two incidents show that a wave among the public in favour of or against an accused can indeed influence the judiciary.
In the past few days, three high-profile figures accused of culpable homicide, corruption and corporate fraud were given considerable leeway despite the public consensus on their complicity in crime. While Salman Khan’s case was stuck in the legal rut since 2002 and resulted in conviction followed by an immediate bail,it took the judiciary 18 years to acquit Jayalalithaa of all charges. B Ramalinga Raju of Satyam fame also had his sentence suspended despite having confessed to embezzling crores.
In these cases concerning the high and the mighty, there was no attempt to fast-track the course of the law nor any hue and cry over the delays. And, there was no need felt to satisfy any conscience, collective or otherwise, and certainly not that of the pavement dweller mowed down by Salman’s SUV.