On April 4, 2014, the sessions court, ruling on the Mumbai Shakti Mills gangrape case, sentenced three boys, aged 18, 20 and 27, to death. They had been convicted for gangraping a 19-year-old telephone operator in July 2013 and then a 23-year-old photojournalist in August 2013. For the first time in India, a death sentence has been imposed for rape even when the victim was not killed.
The legal basis for the death penalty in this case was Section 376E, introduced in the Indian Penal Code in April 2013. This section states: “Whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or Section 376D 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”. The judge in the Shakti Mills case opted for the death penalty instead of life imprisonment.
Section 376E and other amendments to the IPC relating to the offence of rape were introduced after the public outrage that followed the December 16 gangrape in Delhi. While the public reaction to the brutality of the crime is understandable, the subsequent changes to rape laws were disproportionate and bizarre. In no country is there a provision like Section 376E, which inflicts the extreme penalty of death on a rapist simply because he has been previously convicted of rape. In the Shakti Mills case, the three boys were convicted of two offences of rape on the same day, which makes the applicability of Section 376E itself doubtful.
The death penalty is widely denounced as inhumane and cruel. More than 118 countries have abolished the death penalty; India is among the 50-odd countries that retain it. The Second Optional Protocol to the International Covenant on Civil and Political Rights mandates the abolition of the death penalty. Unfortunately, India has not even signed this covenant. Recently, Nobel laureate Amartya Sen and other intellectuals in India signed a statement opposing the death penalty as cruel and barbaric, with no deterrent value. In 2004, the European Union expressed dismay at the execution of the rapist and murderer Dhananjoy Chatterjee, and urged Indian authorities not to use the death penalty any further.
In India, we reconcile ourselves to the cruelty of the death penalty by adopting the Supreme Court formula put forward in the Bachan Singh case of 1982, where it was held that the death penalty would be imposed only in “the rarest of rare case”. But this subjects the accused to the personal opinion of the judge, there being no objective standard for imposing the death penalty. The vagaries of this formula have been illustrated many times. In a memorable case, Justice P.N. Bhagwati pointed out how subjective and unpredictable it was, when one Supreme Court bench sentenced the convict in a murder case to death while a different bench did not impose the death penalty on another convict in the same case. The Bachan Singh case will have to be reviewed by the Supreme Court some day, in the interests of keeping up with the evolving norms on capital punishment in the rest of the world.
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Those who want to retain the death penalty do not realise the pain inflicted by hanging. Execution by hanging often fails at the first attempt and has to be repeated. The cruelty is not merely towards the convict but also his near and dear ones.
This writer believes Section 376E is unconstitutional as it imposes the death penalty on a rapist merely because he has previously been convicted of the same offence. It clearly violates the fundamental right enshrined in Article 21 of the Constitution, which guards against the deprivation of human life by an unreasonable law. Indian constitutional jurisprudence, which prides itself on extrapolating a liberal meaning of the fundamental right to life, cannot hold Section 376E to be legal. Mulayam Singh Yadav was not wrong to condemn the death sentences awarded to the three young boys in the Shakti Mills case, and in saying that this provision of the IPC should be repealed at the earliest.
The writer is a senior advocate of the Supreme Court, former solicitor general of India and advocate-general of Maharashtra