In the Shakti Mills gangrape case, wherein three convicts have challenged the constitutional validity of Section 376 (E) of the IPC before the Bombay High Court, Advocate General Ashutosh Kumbhakoni on Friday said section 376 (E) was added through an amendment by the legislature after considering the opinions of experts and NGO, laws in other countries and looking at the rise in crime and its brutality.
Section 376 (E), added by an amendment made by the Parliament in 2013 after December 16 gangrape case, states that whoever has been previously convicted of an offence of rape, and is subsequently convicted of an offence punishable under IPC for punishment for rape, “shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death”.
The three convicts — Vijay Jadhav, Mohammed Kasim Bengali and Mohammed Salim Ansari — have all been sentenced to death by a sessions court in 2014 for the gangrape of a city-based photojournalist. The same year, the three men were also convicted for raping a call centre employee. Both instances of gangrape had taken place in 2013 in the Shakti Mills compound.
A division bench of Justice B P Dharmadhikari and Revati Mohite-Dere, asked Kumbhakoni if 376 (E) by itself constitute a separate offence to which he said it does not constitute a separate offence, as the title of the act itself says that it is a punishment for repeat offence. He further explained that if an accused is convicted for the second offence, then he will be convicted under 376 (A), but punished under 376 (E). Kumbhakoni concluded his arguments by stating that a clear message should be sent that “when a woman says no, it means no, you cannot take it as yes”.
Aabad Ponda, an amicus curiae, told the court that section 376 (E) is constitutionally valid, and further added that the enhanced punishment can be awarded only if second offence is committed after the first conviction. Ponda further argued that section 376 (E) does not uses the word enhanced punishment. Ponda also told the court that the Indian law cannot be compared with American law, as the rape offence in America is against an individual, while in India it is against the society.