Observing that the offence of rape can be said to be graver than that of murder, the Bombay High Court Monday upheld the validity of IPC Section 376E, which states that a repeat rape offender should be imprisoned for rest of his life or be sentenced to death.
Justice B P Dharmadhikari and Justice Revati Mohite-Dere said, “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.”
The IPC section, added by an amendment made by the Parliament in 2013 after December 16, 2012 gangrape case, was challenged by three accused — Vijay Jadhav, Mohammed Kasim Bengali and Mohammed Salim Ansari — all sentenced to death by a sessions court in 2014 for the gangrape of a city-based photojournalist on August 22, 2013. The three were also convicted for raping a call centre employee. Both incidents had taken place in 2013 in the Shakti Mills compound.
The trials in both cases were held simultaneously and the conviction was handed out the same day. However, the trial court proceeded to pronounce the punishment in the call centre employee case and allowed a prosecution plea to charge the convicts under IPC Section 376E.
One of the main grounds raised by the accused was whether IPC Section 376E violates the principle of proportionality, by prescribing a sentence of death, though no death is caused, and whether it is arbitrary.
The bench said there can be no dispute that punishments must be proportionate to the nature and gravity of the offences, for which the same were prescribed and that prescribing punishments is the function of the legislature and not of courts.
One of the arguments by lawyer Yug Mohit Chaudhary, arguing on behalf of the accused, was that under Section 376E, though a crime is of a lesser degree, the punishment is more grave.
The bench said it would be unrealistic to compare cases of rape with the offence of murder, as the consequences are incomparable. The court said the background in which 376E was enacted shows the concern of Parliament for the safety and security of women and children and as such, cannot be dubbed as being either arbitrary or outrageously disproportionate.