In a significant decision, the Bombay High Court upheld the constitutional validity of Section 376E, IPC, which prescribed death penalty for persons convicted of repeat offence of rape, i.e., if a person who had a previous conviction of rape or gang rape is again convicted of any of the offences of rape under IPC, such a person can be punished with imprisonment for life, or with death.

Before analysing the judgment, it is important to traverse the facts of the case, since it pertained to the infamous ‘Shakti Mills’ gang rape cases of 2013 in Mumbai when the accused were tried for the offence of gang rape in two similar cases, and the proceedings were going on simultaneously.

Accordingly, the accused challenged the validity of Section 376E, IPC on the basis of the violation of the fundamental rights under Articles 14 and 21 of the Constitution. They further argued that Section 376E imposed a new form of punishment, i.e., imprisonment for life (for the remainder of life), unknown to law; it denuded the constitutional and statutory power of remission;  it prescribed disproportionate punishment, and in effect, imposed the mandatory death penalty, amongst others.

In a detailed judgment, the Bombay High Court rejected all the contentions raised by the Petitioners and relied mostly on the ‘will’ of the legislature. The Court held that imprisonment for the remainder of one’s life is within the purview of IPC, and not something unknown to law, as observed in several Supreme Court cases. In these cases, the accused would be entitled to remission or commutation of sentence, as they are constitutional remedies and cannot be whittled down. On the question of proportionality, i.e., whether the sentence of death is proportionate for an offence, where no death was caused, i.e., the offence of rape, the High Court had extensive observations, which were highly problematic in nature. The Court noted that there are existing offences that prescribe the death penalty for non-homicidal offences, i.e., Section 364A (kidnapping for Ranson), Section 120B (conspiracy), Section 121A (waging war against the State) and Section 132 (abetting mutiny by a soldier), amongst other offences in IPC.

Significantly, in a highly regressive approach, the High Court noted that the offence of rape can be graver than that of murder, and observed that “it would be highly unrealistic to compare cases of rape with the offence of murder, as the consequences are incomparable. A victim of rape undergoes a traumatic experience with which she has to live for the rest of her life….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 victim is lifelong.”  

It is important to bear in mind that Section 376E, IPC was introduced only in March 2013 when the Criminal Law (Amendment) Act, 2013 was passed in Parliament in the aftermath of the horrific gangrape of Nirbhaya in December 2012. At that time, there was a huge demand for reforms in the law relating to rape and sexual violence resulting in the slew of legislative changes in 2013. Even in that campaign, women groups explicitly stated that they did not support the death penalty for the offence of rape since it would make convictions for rape even more difficult than already it was. It was also feared that the rape survivor would even be more at risk of being killed, in order to eliminate her from testifying against the accused.

In fact, the Justice J.S. Verma Committee, which was set up in December 2012 to make recommendations for legal reforms relating sexual violence, and the report was submitted in January 2013, did not recommend the death penalty for the offence of rape. The Committee explicitly noted that “in our considered view, taking into account the views expressed on the subject by an overwhelming majority of scholars, leaders of women’s organisations, and other stakeholders, there is a strong submission that the seeking of the death penalty would be a regressive step in the field of sentencing and reformation. We, having bestowed considerable thought on the subject, and having provided for enhanced sentences (short of death) in respect of the above-noted aggravated forms of sexual assault, and having regard to the current thinking in favour of abolition of the death penalty and also to avoid the argument of any sentencing arbitrariness, we are not inclined to recommend the death penalty”.

The High Court referred to neither feminists’ discussions on sentencing for rape nor the Justice Verma Committee recommendations, but only relied on the intention of legislation to enact a law providing strictest punishment for rape as well as paternalistic decisions of the Supreme Court that viewed rape more as a ‘crime against society’ than as a horrific violation of individual woman’s autonomy and dignity. Instead of strengthening the legal procedures at work, including providing protection to witnesses, the High Court sadly affirmed the legislative ‘shortcut’ of providing capital punishment for rape. The Court lost another significant opportunity to restrict the application of the death penalty in furtherance of the goal of the overall abolition of capital punishment in India. In a country, where the police often refuse to register an FIR of rape, despite the legislative mandate after 2013, it is extremely unfair to frame the debate on the death penalty and rape from the perspective of protecting women’s dignity and autonomy. Women’s dignity would be better protected if the police response mechanism is more victim-friendly, intrusive questions while the cross examination is not allowed, and the accused is punished swiftly, after a victim-sensitive trial. When rape is not a death sentence, then the punishment ought not to be one.