india

Updated: Jun 04, 2019 01:29 IST

The Bombay High Court (HC) on Monday upheld

constitutional validity of Section 376E of the Indian Penal Code (IPC) which states that a repeat rape offender can be awarded life imprisonment or death penalty.

Vijay Jadhav, 27, Mohammed Kasim Shaikh Mohammed Hashim Shaikh, 24, and Mohammed Salim Mohammed Kudus Ansari, 32, who were convicted for the gang rape of a 23-year-old woman at Shakti Mills on August 22, 2013, had challenged constitutional validity of the legal provisions under which they were awarded life sentence in 2014.

During probe, the police found the trio had also gang raped an 18-year-old woman on July 31 at the same place.

The amendment brought in place in 2013, after the brutal gang rape of a 23-year-old woman in Delhi in 2012.

“Section 376-E is not ultra vires the Constitution,” a bench of justice BP Dharmadhikari and justice Revati Mohite-Dere said while dismissing petitions filed by the three convicts.

The bench rejected an argument advanced on behalf of the trio that “Section 376E was arbitrary, disproportionately harsh and therefore violated the mandate of equality enshrined in the Constitution of India”. Their argument further said “the section prescribes death penalty, even when no death (murder) is caused by the accused person.

The bench said it would be “highly unrealistic” to compare rape with the offence of murder, as the “consequences are incomparable”.

“A victim of rape undergoes a traumatic experience with which she has to live for rest of her life. Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim. Needless to state, the stigma that is attached to rape victims is lifelong,” the bench said, adding, “In a sense, the offence of rape can be said to be graver than that of murder.”

The bench said the legislature, while enacting Section 376E, was aware of people’s needs and necessary measures to meet those needs (the growing incidents of rape).

It added there was no doubt that “courts have the jurisdiction to interfere when the punishment prescribed is outrageously disproportionate to the offence, but legislature is in the best position to understand the needs of the society”. Besides, the judges said “there were other penal sections that prescribed death penalty for offences involving no murders”.

The bench also rejected the argument that Section 376E created a new punishment – imprisonment till death of the offender – that is unknown to the penal law in India. In this regard, the judges referred to Supreme Court rulings holding that life imprisonment means imprisonment for rest of the natural life of the offender and therefore, it was not a new punishment.

In 2013, the three convicts were tried in the two cases simultaneously, and on March 20, 2014, the accused were convicted in both cases. The next day, the trial court sentenced the trio in one of the cases. When proceedings for sentencing in the other case were taken up, the prosecutor presented an application for amendment of the charge added under Section 376E. On March 24, the trial court allowed the application and invoking Section 376E handed death sentence to the trio.

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