Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section1 376AB or section 376D or section 376DA or section 376DB 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 death1.
1 Criminal Law (Amendment) Act, 2018
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.
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