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-Rea Agarwal
Introduction
Law and psychology ought to be framed in tandem. The Milgram Project is a classic case study that demonstrates the unsettling dynamics of authority and obedience and reveals a pothole of basic Human psyche that law fails to account for. It is this loophole that the article attempts to bring to light.
The nuptial of psychology with law is the entire reason for the existence of excusatory offences because the State itself recognises that certain actions permit an act that would otherwise constitute an offence due to the psyche of individuals. Every modern penal code has general exceptions. Right from the 1st draft by Macaulay, India’s Penal Code has had a chapter on general defences, and these have been retained in the revamped penal code, i.e. BNS.
In Indian law, under Section 14 of the BNS, the fact that a criminal act is done in obedience to the orders of a duly constituted superior, whether civil or military, excuses the doer of the action. Illustration (1) to Section 14 further clarifies this. In the case of State of West Bengal v. Shew Mangal Singh, history sheeters were fired at when they attempted to resist arrest during a raid. The officer was prosecuted and convicted but on appeal, the officer was acquitted since he had acted under the orders from a superior. However, while deciding this, the Supreme Court laid a paradoxical situation and declared that no one is bound by an unlawful order of a Superior and therefore, in effect, created an exception to an exception. This came to be known as the doctrine of manifestly unlawful order. A soldier cannot be excused on the pretence that he is following a superior’s order if the behest itself is condemnable. This was seen in the case of Charan Das v. State and Mahadeo v. R. In the former case, the Court held that the accused-acting under orders from a Superior, should have exercised his own judgment. In R v. Laroche too, as to the defence of superior orders, when a municipal treasurer pleaded that she had paid money to the mayor on his instructions, in the honest belief that he was entitled to receive them; the majority of the Supreme Court was of opinion “that there could be no honesty or honest opinion of right in these transactions.” The general sentiment is that nothing but fear of instant death would constitute a defence for a policeman who tortured anyone on the orders of his superiors. The Court has previously considered a case of a naik and two men who had fired on a mob that was threatening them, and held that “they must be taken to have known that the naik was wrong in law in firing upon the mob, and that they were not bound to obey his illegal order.” A year earlier, a police officer who committed a wrongful act under the order of his superior officer had been held liable “as his mistake of law in supposing himself authorised cannot be accepted as a good defence though it may be a ground for mitigation of punishment.”
Herein, lies a major flaw in recognising and registering the basic psychology of a human being as established in the Milgram Experiment way back in 1961.
Milgram Experiment
Stanley Milgram was a young psychology professor at Yale University who was keen on knowing if people were capable, when ordered by a legitimate authority, of torturing a fellow human being by applying electric shocks. Milgram ran 24 experimental conditions manipulating variables such as the proximity of the participants to one another; however, his first published condition, also referred to as the ‘baseline experiment’, has garnered the most fame. The baseline experiment was decoyed under the guise of being an experiment testing the effects of punishment on memory and participants were assigned the role of ‘teacher’ who had to administer electric shocks to another participant-who were picked to play the role of the ‘learner’ in the experiment- every time they gave an inaccurate answer on a learning task. The learner was, in reality, an associate of the experimenter.
The particulars of the experiment were as follows. The shock generator was marked with voltage levels in increments of 15 volts ranging from 15 to 450 volts and supplemented with labels such as ‘strong shock’ at 135–180 volts, ‘extreme intensity shock’ at 315–360 volts and ominously ‘XXX’ at 435–450 volts. Unbeknownst to the teacher, the shocks being registered were fake. Throughout the experiment, the learner was in a different room from the participant. At 300 volts, the learner pounded on the wall and stopped giving answers; this happened again at 315 volts, and then afterwards, there was no further sound. The participant had to continue asking the questions, and the learner’s silence was taken as an incorrect answer, which required a shock as punishment. If the teacher(s) indicated they wanted to stop while working through the voltage levels, the experimenter prompted them to continue using four prods: ‘please continue’, ‘the experiment requires that you continue’, ‘it is essential that you continue’, and ‘you have no other choice you must continue’. The point of disobedience was indicated when the participant refused to continue with the experiment. Forty men took part in the baseline experiment, with none of them stopping before administering 300 volts. Five of the men refused to obey beyond 300 volts. The rest continued, with nine of them administering shocks between 315 and 375 volts, and 26 of them going to the maximum voltage of 450 volts. To account for participants’ obedience to authority, Milgram argued for the role of the agentic state. This occurs in situations where a person no longer sees themselves as responsible for their actions, and instead views themselves as the instrument for carrying out another person’s requests. Milgram did not see this as a thin alibi for an individual’s actions, but instead as a fundamental change in their thinking. Milgram reported extensively about the stress these people had experienced. In a large number of cases, the degree of tension reached extremes that are rarely seen in socio-psychological laboratory studies. Subjects were observed to sweat, tremble, stutter, bite their lips, groan, and dig their fingernails into their flesh. These were characteristic rather than exceptional responses to the experiment. Milgram, in emphatic terms, has recorded the effect of the experiment on one of the participants as being enough to reduce an initially poised businessman to a twitching, stuttering wreck, who was rapidly approaching a point of nervous collapse within 20 minutes.
On the contrary, the only reason they obeyed was to avoid conflict with the test leader, the authority. The presence and immediate control of this authority is therefore of the utmost importance and seems to be an important factor in obedience. Apart from that, the authority itself is also important. It must be a legitimate authority. Milgram also proved that apart from the perception and interpretation of these power symbols, the monopolistic source of authority is important.
Foreign jurisdictions
According to the German Penal Code, “no act constitutes an offence if its perpetrator was compelled so to act by irresistible force or by a threat entailing an immediate and otherwise not avertable danger to his own or one of his family member’s body or life.” The 1916 Criminal Code of Lagos, East and West Nigeria provides that “a person is not criminally responsible for an act or omission if he does or omits to do the act in obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful.”
The Canadian Criminal Code puts the issue of obedience in juxtaposition with that of coercion. By section 15, “No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.” It would appear from this wording that the immunity extends to acts done in obedience to “public functionaries holding office thereunder”.
It should be kept in mind that we have not even begun to take into account more collectivist cultures, where studies have shown, time and time again, that higher obedience rates exist.
Conclusion
The Milgram Experiment starkly reveals the profound psychological grip of authority, exposing a chilling truth: obedience often overrides moral judgment. Yet, the “manifestly unlawful order” doctrine demands individuals defy superiors, which is a glaring paradox that ignores human nature. Legal systems worldwide grapple with this tension and offer narrow exceptions only for immediate, life-threatening coercion. But how realistic is it to expect a person operating under their superior’s orders, entrenched in hierarchy and conditioned to obey, to discern and proceed to shun those very same orders that he believes himself bound to follow? Until jurisprudence acknowledges this dissonance, it risks condemning individuals for failing a test that is wired to produce failures. The doctrine must evolve, or it remains a hollow demand for heroism.
The author is currently a student at RMLNLU.
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