India

SC to examine convict’s plea on validity of child gangrape law

A view of Supreme Court of India in New Delhi. File

A view of Supreme Court of India in New Delhi. File | Photo Credit: S. Subramanium

The Supreme Court on Tuesday agreed to examine the validity of a law which sends a guilty man either to a lifetime in prison or to the gallows for gangraping a child under 12 years without affording him a chance to atone for his crime or reform.

The petition was filed by a 29-year-old man, Nikhil Shivaji Golait, who is serving a prison sentence which would last till the end of his natural life for the gangrape of a nine-year-old in Maharashtra in 2019. He was initially sentenced to death by the Special Court which tried the case. The Bombay High Court had commuted it to life imprisonment without remission.

Golait argued that Section 376DB (gangrape of a child under 12 years of age) of the Indian Penal Code restricted the trial judge’s options to either a sentence for “the remainder of the person’s natural life” or death penalty. Life imprisonment is the “minimum, mandatory” punishment under the provision.

Appearing before a Bench led by Justice D.Y. Chandrachud, advocate Gaurav Agrawal, for the petitioner, argued that unlike Section 376DB, the minimum punishment prescribed under Section 376AB (rape of a child under 12 years of age) was 20 years of imprisonment.

“Simply because two persons are involved in the offence of rape of a minor child of less than 12 years, the sentence imposed under Section 376DB is totally disproportionate in as much as a person can be imprisoned for 40 to 50 years, if not more. The provision suffers from manifest arbitrariness,” the petition contended.

Mr. Agarwal submitted that Section 376DB offered a trial court no option but life sentence or the higher punishment of death penalty. The petition argued that Section 376DB violated Articles 21 (right to life) and 14 (right to equality) of the Constitution.

“Reformation is one of the important aspects of sentencing jurisprudence in this country. A large number of judgments have shown that even in a case of rape and murder of a minor, the Supreme Court has accepted the fact that there is a chance of reformation of the convict and commuted death sentence to life imprisonment. In many cases, the apex court has provided a minimum term of imprisonment of 20 years/25 years/30 years,” the petition said.

Section 376DB was introduced in 2018 when the penal code was amended to provide harsher sentences for the offence of rape.

Referring to the global scenario on the issue, the petitioner highlighted that the European Court of Human Rights in the case of Vinter versus The United Kingdom had ruled that imposing life sentences without review and a realistic prospect of release was a violation of Article 3 of the European Convention on Human Rights.

“It was held that life sentences cannot be considered just punishment as it provided the prisoner with no opportunity for atonement and such sentences were incompatible with the respect for human dignity,” the petition noted.

The petition also argued that the U.S. Supreme Court had held that in extreme cases, a disproportionate sentence violated the Eighth Amendment, which prohibits cruel and unusual punishment, of the U.S. Constitution.

Listing the case on October 18, the Bench asked Additional Solicitor General K.M. Nataraj, for the Union, and advocate Rahul Chitnis, appearing for Maharashtra, to file their written submissions on the issue raised in the petition on or before October 11.


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Printable version | Aug 16, 2022 9:53:29 pm | https://www.thehindu.com/news/national/sc-to-examine-convicts-plea-on-validity-of-child-gangrape-law/article65776206.ece