Bombay HC rejects challenge to Section 376-E IPC by Shakti Mills Rape Convicts [Read Judgment]

Bombay HC rejects challenge to Section 376-E IPC by Shakti Mills Rape Convicts [Read Judgment]

Meera Emmanuel

The Bombay High Court on Monday upheld the constitutionality of Section 376-E of the Indian Penal Code (IPC), which prescribes stringent penalties for repeat sexual offenders.

Inserted, by the Criminal Law (Amendment) Act of 2013, Section 376-E penalises such repeat offenders with with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

The three rape convicts, convicted in the Shakti Mills gang rape case, had challenged the constitutionality of this provision. Dismissing the challenge, the Bench of Justices BP Dharmadikari and Revati Mohite Dere ruled,

… we do not find that Section 376-E, by providing stringent punishment to repeat offenders, in anyway violates the principle of proportionality or is arbitrary or in anyway, violative of Articles 14 and 21 of the Constitution. Nor can it be said to be void for vagueness. As noted, there also exists a fair and just procedure in the Cr.P.C to deal with any contingency arising out of Section 376-E.” 

All three petitioners i.e. Vijay Jadhav, Mohd. Kasim Mohd Hasim Shaikh and Mohd. Salim Mohd Kudus Ansari,  stood convicted of rape and allied offences in two separate criminal proceedings. After they were convicted in the first case, the sessions court allowed a plea by the state to frame an additional charge under Section 376-E against them.

Leading the arguments  for the three petitioners, Senior Advocate Yug Mohit Chaudhary had attacked the constitutionality of Section 376-E on the following broad grounds, i.e.

  • that it creates a new category of punishment (imprisonment till the remainder of one’s natural life) which is not envisaged as a punishment in the IPC;
  • that it denudes constitutional and statutory powers of remission;
  • that it violates the principle of proportionality
  • that it indirectly imposes a mandatory death sentence, and as such is violative of Article 21 of the Constitution.
  • that is discriminatory and arbitrary;
  • that no procedure exists for implementation of Section 376-E, and
  • that Section 376-E is void for vagueness. 

These arguments were contested by Additional Solicitor General Anil Singh and Advocate General for Maharashtra Ashutosh Kumbhakoni. The Amicus Curiae in the case, Aabad Ponda, also argued in favour of the constitutionality of Section 376-E.

The Court, in turn, concurred with the views advanced by the state counsels and the Amicus. In doing so, it also refuted each individual contention advanced on behalf of the petitioners, on the following grounds.

No new offence created

The Court disagreed that Section 376-E creates a new offence in the statute books. The Bench cited several case laws which have already ruled life imprisonment under the IPC means imprisonment for the remainder of the convicted person’s life.

Among others, reliance was placed on the Supreme Court cases of Maru Ram v. Union of India and Ors, Gopal Vinayak Godse v. State of Maharashtra and Union of India v. V Sriharan. 

Notably, the Court pointed out that the first case where it was specifically held that the convict must be made to undergo imprisonment for the remainder of his natural life was the case of Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka. In the said case, the Bench noted,

“…the Apex Court… recognised the right to impose  a punishment beyond mere life imprisonment, by terming it as a `special  category case’, where death sentence is considered to be too excessive and  mere life imprisonment inadequate, by taking into consideration the manner  in which remissions were allowed in cases where life imprisonment was  awarded and how convicts were being released prematurely, on completion  of 14 years, on their sentence being commuted.

This ruling was thereafter affirmed in the V Sriharan case. In view of these observations, the High Court concluded,

It is categorically held that there is no violation of the statutory provisions prescribing the extent of punishment provided in the Penal Code and that, the Court has not carved out a new punishment.”

Apart from such judicial recognition, the Court added that by the 2013 Amendment, statutory recognition is being accorded to the fact that a  sentence of imprisonment for life, would mean imprisonment for remainder of one’s life.

Section 376-E, IPC not the only provision awarding imprisonment for remainder of the convict’s natural life

The Court pointed out that there are other non-homicidal offences which also prescribed equally stringent penalties. In this regard, the Bench has observed,

We also cannot lose sight of the fact, that Section 376-E is not the only Section which prescribes imprisonment for life, which means imprisonment for the remainder of one’s natural life, but there are other Sections i.e. Sections 370(6), 370(7), 376-A, 376-D and recently, in 2018, Sections 376-AB, 376-DA, 376-DB, 376(3) were introduced, which prescribe the same sentence i.e. imprisonment for life, which means imprisonment till the remainder of one’s natural life and that there is no challenge to the same.

Process to execute the statutory offence under Section 376-E, IPC found in Section 418, CrPC

It had been contended that no corresponding amendments were made in the Code of Criminal Procedure (CrPC) when Section 376-E of the IPC was introduced. In the absence of such corresponding procedure, the petitioners contended that there was no process to execute Section 376-E. Therefore, the petitioners argued that Section 376-E violated Article 21 of the Constitution.

The High Court, however, concluded that Section 418 of the CrPC, which deals with executing life imprisonment sentences, would apply when it comes to Section 376-E as well. The judgment states,

Section 418 of the Cr.P.C which deals with the execution of sentence of imprisonment for life is the answer… it is evident from the judicial pronouncements and the relevant provisions in the IPC, that the term imprisonment for life used in Section 418 Cr.P.C, is to be understood to mean imprisonment till the remainder of one’s natural life and hence, there is a mechanism in place to execute such a sentence.

Thus, there is no violation of Article 21 of the Constitution, as there is a machinery/procedure for implementation and execution of the sentence of imprisonment for life, which means till the remainder of one’s life, under Section 376-E.

On whether any rights to remission are taken away by Section 376-E, IPC

The High Court found that Section 376-E, IPC does not take away any right to claim remission or commutation of a sentence under Article 72 (on applying to the Governor) or Article 161 (on applying to the President). The Court pointed out,

Infact, both Mr. Singh, learned ASG and Mr. Kumbhakoni, learned AG, do not dispute the said constitutional right of a convict and therefore, the submissions of the petitioners that Section 376-E denudes constitutional remission, does not hold ground.

While this is the case, the Court proceeded to emphasise that convicts are not entitled to any statutory rights of remission. As also noted in the V Sriharan case,

“…  in the absence of any stipulation of the life sentence restricting the period to less than the entire life of the said convict, there is no question of the convict getting earned remissions. Therefore, the constitutional challenge to Section 376-E based on statutory power of remission being taken away, does not arise.” 

Section 376-E, IPC does not make death sentence mandatory; Judge’s discretion remains

The Court firstly pointed out that Section 376-E lays down two possible penalties that may be imposed on the repeat offender, in exercise of the Court’s discretion and depending on the case at hand.

However, even if the repeat offender has already been served one sentence of life imprisonment, the Bench opined that it would not automatically make death sentence the mandatory alternative. In this regard, the Court notes that questions of remission could ensure that multiple life imprisonment sentences are not redundant.

The Apex Court has held, that multiple sentences for imprisonment for life can be awarded, however, such sentences would be superimposed over each other, so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other. Thus, Dr. Chaudhary’s contention, that Section 376-E indirectly prescribes a mandatory death sentence, has no bearing and ought to be rejected.”

Penalty under Section 376-E, IPC for repeat offenders not disproportional

The Bench has made several observations touching upon the trauma undergone by rape victims. Inter alia, the judgment highlights,

A victim of rape undergoes a traumatic experience with which she has to live for the rest of her life. The effects of rape are not only physical, but also psychological. Her right to live with human dignity is infringed, which is constitutionally guaranteed to her under Article 21 of the Constitution. Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim. It is an `ultimate violation of self right to live with dignity’.

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…

… considering the impact an offence of sexual assault has on the survivor, by no stretch of imagination, it can be said that rape is less foul than murder. The rising crime rate and falling standards have echoed the need for a deterrent law. The statistics of the National Crime Records Bill of 2017 shows that rapes have gone up since 2016 in Mumbai and Delhi. “

The Court goes on to opine that the 2013 Amendment and Section 376-E were introduced given these concerns, to promote the safety and security of women. In this backdrop, the Court concluded that Section 376-E cannot be rejected as disproportionate to the offence of rape. The judgment states,

” … as such, [Section 376-E] cannot be dubbed as being either arbitrary or outrageously disproportionate or violative of Articles 14 and 21 of the Constitution.

There is always a judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling under Section 376-E i.e. imprisonment for remainder of one’s life or death and the discretion will undoubtedly be exercised by Courts along the judicially recognized lines and death sentence, in the rarest of rare case.

Needless to state, that while awarding death sentence, the Courts will have to follow the parameters laid down by the Apex Court in Bachan Singh (supra) and Machhi Singh vs. State of Punjab.”

Courts would not ordinarily interference with Legislative decisions

The Court also added that it would not ordinarily interfere in with the statutory course prescribed by the legislature unless the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.

However, Courts do not interfere with the prescribed punishment only because a punishment is perceived to be excessive,” the Bench said.

It proceeded add that a case of judicial interference in legislative decisions would only be made out if there is a violation of fundamental rights or if the law is enacted beyond the jurisdiction of the legislature. Otherwise,

The legislature is in the best position to understand the needs of the people as enjoined in the Constitution.”

Government cannot shirk from its responsibility to protect women; High Court suggests welfare measures

Before parting with the judgment, the Court also opined that the State’s role does not stop with enacting legislation to curb sexual offences. The Bench said,

“…  Undoubtedly, prevention of sexual assault is the primary responsibility of the State, however, the responsibility does not stop here.

Once the State accepts and recognises the dreadful impact and effects that sexual assault has on a rape survivor, it is incumbent on the State to have a system/mechanism in place, which will provide not only medical help to such survivors, but also a place where they can be rehabilitated and assistance of counsellors, psychiatrists, psychologists can be provided for dealing with their trauma…”

The Court proceeded to suggest that the following, among other, measures should be implemented in the interest of sexual assault victims.

  • A policy should be in place to held survivors after the sexual assault.
  • The State must also come up with a mechanism to take full responsibility of the children born to survivors, as a result of the sexual assault. 
  • There must be a mechanism to keep a track/watch on sex offenders, to prevent repeat crimes. In this regard, the Court recommended the creation of a database of sex offenders. The Court further opined that with the creation of such a database,  future crimes by such offenders can be obviated.
  • Sexual offenders, whilst in jail can also be provided with counselling and psychiatric/psychological help, as may be necessary, so that they realise the consequences of playing with human lives, and as such minimize the prospect of repeating the offence.
  • Gender sensitisation measures such be carried out, particularly in school

Having made these observations, the Court proceeded to dismiss the petitions, holding,

Having regard to what is stated hereinabove, with regard to the constitutional validity of Section 376-E, we do not find any merit in the said challenge and accordingly dismiss the Petitions.

Read the Judgment:

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