Is the criminal provision that allows the death penalty for repeat rape offenders disproportionate to the crime and thus unconstitutional? Last week, the Bombay High Court dismissed this contention in a constitutional challenge mounted by three men convicted in the 2013 Shakti Mills gang rape case.

In the process, the court clarified that the Section 376-E of the Indian Penal Code, which was inserted into the IPC through an amendment in 2013, does not nullify the power of remission available to the President and state governors.

The court also declared that rape was an ultimate violation of the right to live with dignity and that it could be counted as a crime graver than murder itself.

The case

The clarification came in relation to a case that started in 2014, when a sessions court in Mumbai convicted five men for raping of a trainee journalist the previous year amidst the ruins of a long-defunct textile factory. The same men were also convicted for having raped a telephone operator in the same complex a few months earlier.

When they were convicted in the first case, the prosecution moved an application to frame charges under Section 376 E of the Indian Penal Code. This provision provides enhances punishment for repeat rape offenders with the death penalty as the maximum punishment.

Section 376 E, which was brought in through an amendment to criminal law following the nation wide outrage after the Nirbhaya case in New Delhi, says:

“Whoever has been previously convicted of an offence punishable under section 376 or section 376-A or section 376-AB or section 376-D or section 376-DA or section 376-DB, and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the

remainder of that person’s natural life, or with death.”

Three of the five convicts – Vijay Jadhav, Mohammad Qasim Shaikh, and Mohammad Salim Ansari – approached the Bombay High Court with a petition challenging the constitutional validity of Section 376 E. They claimed that the provision creates a new category of penalty of imprisonment for the remainder of the convict’s mortal life that was not envisaged in the Indian Penal Code. There was no coordinate provision in the Criminal Procedure Code to enforce such a penalty.

The convicts claimed that the provision denudes the constitutional power of remission provided to the President and governors of states as it makes it life imprisonment a punishment for the rest of the convict’s life. In ordinary cases, a person would be eligible for remission after the completion of 14 years in prison.

The convicts argued that if life imprisonment means imprisonment for the rest of the convict’s life, then Section 376 E indirectly imposes the mandatory death penalty. This is because courts in India, unlike in Western countries, have earlier held that two counts of continuous life imprisonment terms cannot be imposed. Therefore, if a person is convicted with a sentence of life imprisonment in one case, the enforcement of Section 376 E would mean that the death penalty becomes the only option for the court to punish a repeat offender.

They also argued that the punishment was disproportionate to the offence as the death penalty has been prescribed for an crime in which the victim has not died.

They argued that the law violated Article 14 and Article 21 of the Constitution, which guarantee equality before the law and the right to life.

Law upheld

In its judgement, the court said that Section 418 of the Criminal Procedure Code was the coordinate provision for Section 376 E of the Indian Penal Code, which enabled its enforcement. Section 418 provides the manner in which an imprisonment is to be enforced.

On the power of remission with the President and the governors, the court held that imprisonment for the remainder of one’s life does not mean the convict loses the right to move a petition for remission according to procedures established by law. However, citing a Supreme Court precedent, the High Court reiterated that remission was not a statutory right. The court said:

“In para 62 of V. Sriharan (supra), it is held that there is no scope to count the earned remission, unless the period of life imprisonment is commuted to any specific period, as the concept of life imprisonment means till the entirety of one’s life. In other words, in the absence of any stipulation of the life sentence restricting the period to less than the entire life of the said convict, there is no question of the convict getting earned remissions. Therefore, the constitutional challenge to Section 376-E based on statutory power of remission being taken away, does not arise.”

On the argument that Section 376 E makes death penalty mandatory, the court said the provision clearly provides two different punishments. The bench noted:

“The Apex Court has held, that multiple sentences for imprisonment for life can be awarded, however, such sentences would be superimposed over each other, so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other. Thus, Dr. Chaudhary’s [lawyer for the convicts] contention, that Section 376-E indirectly prescribes a mandatory death sentence, has no bearing and ought to be rejected.”

On the disproportionality argument, the bench held that courts interfere in the quantum of punishment prescribed only if it is found to be excessive and so disproportional that it becomes inhuman. Otherwise, the legislature is best placed to make such prescriptions of punishment.

Countering the argument of the convicts that the punishment under Section 376 E was disproportional to an offence as the crime does not result in the death of the victim and therefore death penalty was unwarranted, the court said rape was a graver offence than murder as it destroys the self right to live with dignity and can leave the victim in a vegetative state. The bench observed thus: