Bombay High Court
In a significant order, the Bombay High Court on Monday upheld the constitutional validity of the Indian Penal Code's section providing for either life sentence or death penalty for repeat rape offences.
Dismissing petitions filed by three convicts, sentenced to death in the second gang-rape case of Shakti Mills Compound, challenging the constitutional validity of their punishment, Justice B.P. Dharmadhikari and Justice Revati Mohite-Dhere ruled that they found no merit in their arguments and held the provision to be constitutional.
"The effect of rape can even have disastrous consequences, for example, can leave the person in a vegetative state; can compel her to commit suicide and can have lifelong impact on her mental and emotional psyche. Needless to state, that the stigma that is attached to rape victims is lifelong. In a sense, the offence of rape can be said to be graver than that of murder.
"We are of the opinion that the Section 376E of the Indian Penal Code is not ultra vires the Constitution and hence need not be quashed in the present case," the judges said in their ruling.
Section 376E - added in 2013 as one of the amendments after the horrific Delhi December 2012 gang-rape and murder case - says that if a person has been previously convicted for rape, he can be punished with life imprisonment or death sentence upon a subsequent conviction in a rape offence.
The court identified the section as a deterrent for committing rape as the enhanced punishment is relevant to send a strong signal to the accused not to indulge in the offence of rape.
Rejecting arguments of the petitioners' counsel that Section 376-E violates Articles 14 and 21 of the Constitution, the court maintained that a rape survivor's right to live with human dignity is infringed for the remaining life. "Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim.... Repeat rape is to be viewed more seriously and therefore, a more stringent punishment is prescribed."
In 2014, three prime accused - Vijay Jadhav, Mohammed Qasim Sheikh and Mohammed Salim Ansari - were convicted for the gang-rape of a 22-year-old photojournalist on August 22, 2013 and in the gang-rape of an 18-year-old call centre employee on July 31, 2013, both having taken place in the Shakti Mills Compound.
Both cases were tried separately but the trials conducted simultaneously with the verdict coming on the same day.
The trial court accepted the prosecution plea that Section 376E was applicable in the second case (July 2013) as it technically came after their conviction in the first case (August 2013) in which the accused were awarded the death penalty.
Pronouncing the verdict on March 21, 2014, Principal Sessions Judge Shalini Phansalkar-Joshi had found all the five main accused guilty of criminal conspiracy, gang-rape, common intentions, unnatural sex, criminal intimidation, wrongful confinement, assault and destruction of evidence.
While two of the accused were minors and sent to correction homes in Nashik from where they were released after serving the maximum three-year sentence, three others (Jadhav, Sheikh and Ansari) were awarded the death sentence.
It was the first time in India that the section providing for death sentence to a repeat offender in a rape case was invoked, and the Special Public Prosecutor in both cases was ace criminal lawyer Ujjwal Nikam.
The convicts then appealed in the high court, terming Section 376E "unconstitutional" and that a death penalty could not be awarded in cases where another person's life was not taken.
The state argued that Section 376E was valid and said that rape offences should be treated as among the gravest offences even if not accompanied by murder owing to its long-lasting effects on the victim.
