The Bombay High Court last month handed down a judgment upholding the validity of Section 376E of the Indian Penal Code , which authorises the award of either a life sentence or the death penalty to perpetrators upon a second rape conviction.
The Section had been challenged by three of the accused in the Shakti Mills rape case, who had been sentenced to death by a trial court in 2014 . Section 376E is among a slew of recent laws that have expanded the scope of death penalty to beyond cases of homicide, and primarily to incidents of rape. Its constitutionality has been challenged on multiple grounds, primarily due to disproportionality of the punishment.
The High Court’s reasoning in upholding the law, however, is open to criticism. The constitutional standard that courts must apply when testing laws on the touchstone of Articles 14 (right to equality) and 21 (right to life) of the Constitution is that of “proportionality”. In the context of criminal law and sentencing, proportionality asks whether a particular punishment strikes an adequate balance between the gravity of the crime, the interests of the victim and of society, and the purposes of criminal law. Further, the principle of proportionality calls for a striking down of laws that are excessively harsh or disproportionate.
Violation of rights
In 2015, the Supreme Court in the Vikram Singh case limited the application of the proportionality standard to situations where the punishment was “outrageously barbaric”. Subsequent judgments of larger benches — such as in the Modern Dental College case and the Aadhaar case — have made it clear that where the question of rights violations is concerned, the proportionality test has to be more detailed, and has four prongs: first, there must be a legitimate state aim being pursued by the provision; second, there needs to be a rational nexus between the impugned provision and the aim; third, the impugned measure must be the least restrictive method of achieving the aim; and fourth, there must be a balance between the extent to which rights are infringed, and public benefit to be attained from the legislation. In particular, the third prong asks whether there exists an alternative method of achieving the same goal that does not infringe rights to the same degree.
In the Shakti Mills case, given the permanent and irrevocable nature of the death penalty, there arose a fundamental question. This pertained to whether the legislative objective, of increasing the punishment for a certain category of offences to demonstrate social abhorrence towards such offenders, and to create deterrence, could be adequately fulfilled by a sentence of life imprisonment. However, instead of addressing this issue, the Court relied entirely on the fact that the law had been passed with the intention of deterring rapes.
While it is true, in general, that in questions of criminal sentencing, there is a broad presumption in favour of the state, simply stopping at that is not adequate for a court. Proportionality by its very nature precludes a complete deference to the state when it comes to adjudicating on the violations of fundamental rights. However, the Court did not at any point scrutinise the reasons that would have potentially justified the state’s decision to go for death penalty in the case of a non-homicidal crime. Had it applied the proportionality standard in this way, the outcome may have been different.
Another striking aspect of the judgment is the Court’s discussion of the severe effect of rape on women and society. The court declaimed that rape is far worse than murder, and used that notion to hold that the death penalty was proportionate.
A regressive paradigm
Such reasoning is steeped in regressive stereotypes of shame and stigma. This represents vestiges of the notion that a woman is a man’s property, as argued by American jurist Ruth Bader Ginsburg in her amicus brief before the U.S. Supreme Court in Coker v. Georgia case (1977).
The Justice Verma Committee, which was set up to suggest amendments to criminal law after the Delhi gang-rape incident, specifically argued that the state and civil society need to deconstruct and change the ‘shame-honour paradigm’ with relation to rapes, and treat them as an offence against the body. It is troubling that the Bombay High Court conceded to this regressive paradigm.
While non-homicidal crimes might be devastating in the harm that they cause, they cannot, as stated by the U.S. Supreme Court in the Kennedy v. Louisiana case (2008), compare to murder in their “severity and irrevocability”. The petitioner in the Shakti Mills case had also relied on judgments of the United States Supreme Court such as Coker v. Georgia and Kennedy v. Louisiana, in which provisions that stipulated death penalty for non-homicidal offences were struck down. However, the Bombay High Court refused to even engage with the arguments on the basis that “the U.S. Courts treat crimes of rape as crimes against individuals, unlike Indian law, which treats an offence of rape not only as a crime against the victim but, as a crime against the entire society.”
The Court, however, provided no source for this odd claim. It is in the very nature of ‘criminalising’ an offence, instead of treating it as a civil wrong, that the act is deemed to be an offence against society, whether in India, or in the U.S.
Ignoring the American parallels
The American judgments specifically dealt with intricate issues, such as proportionality and harm principle, and the manner in which a court must probe the aims and objectives achieved by such a provision. It would have been a beneficial exercise for the Bombay High Court to deal with those arguments.
As courts around the world, including the Indian Supreme Court, have recognised, death penalty is a form of punishment qualitatively different from any other. It is permanent and irrevocable, rules out any possibility of correcting an error if found later, and denies the possibility of reform and rehabilitation. It is for this reason that the Supreme Court has repeated many times that the death penalty must only be imposed in the “rarest of rare” cases, and this is also why the recent proliferation of statutes expanding the scope of the death penalty, often as knee-jerk responses to public outrage, is a cause for concern.
In this situation, it is of utmost importance for courts to scrutinise such laws carefully, and on the touchstone of constitutional standards. In this regard, the Bombay High Court’s judgment falls short. It engages in excessive deference to the ‘will’ of the state and does not enter into any judicial analysis of whether the death penalty in these circumstances was at all justified under the doctrine of proportionality, and whether any other lesser form of punishment would have sufficed. The judgment also repeats gendered stereotypes about the nature of rape to substantiate the Court’s conclusions, and dismisses, without engagement, insights from other courts grappling with similar issues.
Ninni Susan Thomas is with Project 39A at National Law University, Delhi. Views expressed are personal