The three convicts who were awarded death penalty by the Mumbai Sessions Court under 2013 year introduced Section 376(E) of the Indian Penal Code (IPC) approached the Bombay High Court to challenge the Constitutional validity of this stringent provision introduced in the rape law after the Nirbhaya gang rape incident in 2012. They also filed a petition challenging the Session Court’s order of allowing the prosecution to invoke Section 376(E) of the IPC when the trial was almost completed.
Section 376(E) of the IPC says, “Whoever has been previously convicted of an offence punishable under section 376 (Punishment for rape) or section 376A (Intercourse by a man with his wife during separation) or section 376D (Gang Rape) 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.” In simple words, an accused who is a repeat rape offender should be imprisoned for the rest of his life or sentenced to death.
The three convicts, namely, Vijay Jadhav, Mohd. Kasim Bengali and Mohd. Salim Ansari were sentenced to death by the Sessions Court in April 2014 for raping a photojournalist at the defunct Shakti Mills Compound on August 22, 2013. The trio were also convicted of gang raping a telephone operator in July 2013 in the same Shakti Mills Compound. These repeat offence of rape led to the court ordering death sentence to the convicts under section 376(E) of IPC. The Sessions Court in April 2014 held five persons guilty for the August 2013 rape of a photojournalist, out of which, Suraj Khan, the fourth accused, was awarded life imprisonment while the fifth accused who was a minor was sent to the juvenile correctional services.
Advocate Yug Chaudhary, counsel for the accused, argued that the punishment prescribed under section 376(E) was arbitrary and unconstitutional. “The minimum sentence for a repeat rape offender is much harsher than that for murder,” he told a division bench of Justices Bhushan Dharmadhikari and Revati Dere. He also argued that death sentence has violated their fundamental right to life guaranteed under Article 21 of the Constitution which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. He also mentioned about violation of Article 14 (equality before law) of the Constitution.
While arguing, he referred to the earlier Supreme Court judgements and American and Canadian laws. “Section 302 under the IPC entails a minimum punishment of life and a maximum of death for an offence of murder. Section 376(E), however, entails a minimum punishment of imprisonment for one’s full life without any possibility of remission,” he said. “Therefore, is our legislation saying that the offence of repeat rape that doesn’t cause homicide is harsher than the offence of murder?” Chaudhry asked. “How can one prescribe death in a case where another life has not been taken?” he questioned. He claimed the provision also takes away the powers of the President and governor for premature release or remission. He also said that such punishment had been termed as “savage sentence” by the US Supreme Court.