Delivering a landmark ruling Monday, June 3, the Bombay High Court upheld the constitutional validity of section 376E of Indian Penal Code while hearing an appeal filed by three Shakti Mills gang rape convicts; under this section, repeat offenders in rape cases face the death penalty.
“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,” a division bench of Justices B P Dharmadhikari and Revati Mohite Dere observed on Monday, dismissing petitions filed by three rape convicts who are on death row in the sensational 2013 Shakti Mills rape cases.
The amendment was introduced by the Criminal Law (Amendment) Act in 2013, after the 2012 Nirbhaya gang-rape case. According to the changes, anyone found guilty under the section, ie., a proven repeat rape offender, can be sentenced to life imprisonment or death.
Shakti Mills gang-rape case background
Three of the seven accused in the 2013 Shakti Mills gang rapesof an 18-year-old telephone operator and a 22-year-old photojournalistin the deserted mill compound were sentenced to death.
A Mumbai sessions court pronounced the death sentence for the trio in 2014 on the grounds that they were involved in repeat offences, thus earning them the first such conviction under the changed law.
Another bench of the Bombay High Court will now take up the convicts’ appeals challenging the validity of section 376E for a final hearing. They had contended in February that the sessions court had acted beyond its power in awarding them the death penalty, and pointed out that only the rarest-of-rare cases should invite capital punishment, according to the Constitution.
What we know about the 2014 trial
The first-of-a-kind ruling, which awarded Vijay Jadhav, Kasim Bengali, and Salim Ansari the death penalty under section 376E, was decried by many sections of the society that consider death sentences incompatible with the contemporary standards of decency.
The three were among the four convicted for raping both survivors between May and August 2013 at the same place; they were 19, 21, and 28 years at the time.
Two other adult convictsone each in both caseshave already been sentenced to life imprisonment, while two minors were sent to a correctional facility. Activists at the time had rallied hard for the minors to be tried at juvenile court instead of a regular one.
Ever since the 2012 Delhi gang rape, families of victims have repeatedly urged the Supreme Court to lower the age at which accused should stop being considered juvenilesfrom 18 to 16, especially for those who commit brutal and heinous acts like gang rape.
What necessitated the amendment?
The amendment was introduced on the basis of recommendations by the Justice J S Verma committee formed to deal more sternly with repeat rape offenders, following the nationwide outrage in 2012.
The state government confirms the ruling and stands in support of the amendment that rape should be treated as the gravest offence, even if it did not result in death, LiveLaw reported.
Echoing these terms, the bench said on Monday, “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.”
It added that the effect of rape can have disastrous consequences; for example, it 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.
We are of the opinion that section 376 (e) of the IPC is not ultra vires to the Constitution and, hence, need not be quashed in the present case, the court said, according to PTI.
“Not only young girls or women, but even children, newborns or toddlers are not spared. Where are we, as a society, heading? Do children, women not have the right to live with the human dignity guaranteed to them under Article 21 of the Constitution?” the judges asked.
What happens now?
As the trial for Asifa Bano nears completion, with the verdict likely to be delivered on June 10, these are seminal questions that need answers.
But there is persistent doubt in academic circles if the death penalty is the answer to solving the gender crimes epidemic in a society deemed generally dangerous for women.
While certain crimes, by the nature of their egregious brutality, justifiably incite demands for retributive justice, the death penalty ultimately models the very behaviour it seeks to prevent.
It also begs the question if he who lives by the sword need die by it, and whether death as a legal penalty serves its primary purpose of reformation and punishment.
Incarceration has a better chance of achieving both, noted the Supreme Court of Connecticut while abolishing death penalties in 2015. Life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes, it said.
Furthermore, legitimising death as punishment has been found to encourage vigilante justice in many cases, as evinced in the recent killings of rape suspects in Bangladesh by the anonymous Hercules. Another alleged rapist of a nine-year-old girl, caught red-handed, was beaten to death by a mob in Punjab this Sunday.
A largely unaddressed facet of the death penalty debate deals with how it has been used disproportionately for centuries, against those whom society has marginalised socially, politically, and economically, and how it has been weaponised by those with political interests.
In the Kathua case, for example, influential men and their consorts were involved in the abduction and eventual murder of an eight-year-old nomadic girl, who was raped in captivity for over four days.
Let’s not forget the extent of efforts in destroying crucial evidence that led to the arrests of village head Sanji Ram, his son Vishal and his friend Anand Dutta, two special police officers Deepak Khajuria and Surender Verma, and head constable Tilak Raj.
Will the convicts be given stringent sentences in this case as well? Only time will tell.
Tussle between top and state courts
Indian trial courts, according to a study by the National Law University, Delhi, handed out the highest number of death penalties since 2000, 162 to be precise.
This increase is possibly owing to the amendment extending capital punishment to those convicted of sexual assault against minors aged below 12, after the Kathua and Unnao rapes. Prior to this, death sentences were only meted out to those convicted of homicidal crimes.
But legal observers have noted a strange dichotomy between the apex court and state courts.
While Maharashtra, Jammu and Kashmir, Madhya Pradesh, and Arunachal Pradesh have been passing laws for death penalty, the Supreme Court has taken to questioning its the purpose and practice, overturning or commuting 11 sentences last year alone.
Even the Law Commission has suggested abolishing the death penalty, except in cases involving terrorism.
Surendranath, executive director of Project 39A, at National Law University, Delhi, rightly tells The Print, Sexual violence is a deeply sociological problem that cannot be solved by knee-jerk legislative amendments.
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Prarthana Mitra is a Staff Writer at Qrius