On June 3, the Bombay High Court upheld the constitutional validity of Section 376E of the Indian Penal Code, thereby upholding the death sentence handed to the convicts of the Shakti Mills gang rape case.
What is Section 376E?
The Criminal Law (Amendment) Act, 2013, was introduced following the 2012 Delhi gang rape case. In this, the definition of rape was widened to include oral and digital penetration, and Section 376E was added to award the death penalty to a convict who is a repeat offender under Section 376, 376A and 376D. Section 376A includes causing death of the victim, and 376D is to charge the convict with gang rape — an offence that carries a sentence of 20 years to life.
These broader definitions were based on the Justice Verma Committee, which was constituted to enable quicker trials and harsher punishment for those accused of sexual assault.
What is the Shakti Mills gang rape case?
A 22-year-old photojournalist was gang-raped by five adult men and two juveniles. Three of the men were found to have raped a 19-year-old telephone operator at the Shakti Mills compound, as well. After the conviction of the accused, the prosecution in the case moved to add Section 376E to three repeat offenders — Vijay Jadhav, Mohammad Qasim Shaikh and Mohammad Salim Ansari. The court awarded the death penalty to these three.
Why did they appeal?
The advocate appearing for all three convicts told the Bombay High Court that the death penalty awarded to them was “a disproportionate punishment” and violated their fundamental rights. Yug Chaudhry argued death penalty was violative of fundamental rights under Article 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) and Article 14 (equality before law) of the Constitution. He relied upon earlier Supreme Court judgments and American and Canadian laws.
“Section 302 (punishment for murder) under the IPC entails a minimum punishment of life and a maximum of death for an offence of murder. Section 376E, however, entails a minimum punishment of imprisonment for one’s full life without any possibility of remission. Therefore, our legislation saying that the offence of repeat rape that doesn’t cause homicide is harsher than the offence of murder,” he said.
What was the response?
The section that prescribes death penalty for repeat rape offenders was rightly introduced to impose a deterrent against such crimes, the amicus curiae in the Shakti Mills gang rape case advocate Abad Ponda told the Bombay High Court. However, the application of this Section 376E in the present case could be questionable, the amicus told a Bench of Justices B.P. Dharamadhikari and Revati Mohite-Dere.
What has the court said?
“We are of the opinion that Section 376E of the IPC is not ultra vires to the Constitution and hence need not be quashed in the present case,” said the same Bench.