SECTION 376 (E) OF INDIAN PENAL CODE, 1860 IS UNCONSTITUTIONAL: SHAKTI MILLS GANGRAPE - ARGUES CONVICT'S LAWYER BEFORE BOMBAY HC

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On hearing the confirmation of death penalty which was awarded to the Vijay Jadhav, Mohammed Qasim Shaikh and Mohammed Salim Ansari for the offence of gangrape which was committed to an 18 year old call centre employee in July 2013 and 22 year old photojournalist in August 2013, advocate Yug Mohit Chaudhary who argued that the government's views on Section 376(E) of the Indian Penal Code had been outdated and violative of the Constitution.

 

Yug Chaudhary, who submitted before the bench of Justice BP Dharmadhikari and Justice Revati Mohite Dere that the views seeking the death penalty for the trio were made violative of all the constitutional principles.

 

According to Section 376(e) of the Indian Penal Code, 1860 states that:

“Whoever has been previously convicted of an offence punishable under section 376 or

(i)    Section 376 A

(ii)   Section 376 AB

(iii)  Section 376 D

(iv)  Section 376 DA

Section 376 DB is subsequently convicted of an offence punishable under any of the said sections which shall be punished with the imprisonment for life which shall mean the imprisonment of the remainder of that person's natural life or with death.

 

There were 3 who had been convicted and sentenced to death under section 376(e) of the Indian Penal Code, 1860 by the Session Court on March 20. 2014 while one more accused named Shiraj Khan who was sent to a juvenile home as he was a minor. Now, challenging their conviction and the new amended laws Chaudhary submitted that the said provision was arbitrary and was entailed disproportionate punishment. He also pointed out how this particular section could be violated under Articles 14 and 21 of the Constitution of India.

 

“Section 302 of Indian Penal Code entitles that the minimum punishment for life and a maximum punishment of death for an offence of committing a murder. Section 376(e), however it also entails the minimum punishment of imprisonment for one's full life without any possibility of remission. Therefore, it is our legislation of repeating the rape that do not cause homicide is harsher than the offence of murder,” Chaudhary Enquired.

 

How can one prescribe death in a case where another life has not been taken,” he argued. Citing the judgments of the Indian and American Supreme Courts and mandating that the death sentence was an unfair punishment in cases of non-homicidal offences. These type of punishments had been termed by the US Supreme Court as a “savage sentence”, he told.

 

Additional Solicitor General Anil Singh and Maharashtra Advocate General Ashutosh Kumbhakoni had defended the new amendment and argued that the offence of rape, even when the non-homicidal deserved to be treated as the gravest offence, for the rape which was not just a physical attack but it is destroyed by the victim's soul, her personality and often rendered the rest of her life meaningless.

 

Amicus Curiae Aabad Ponda defended the constitutional validity of Section 376(e) and told that “The Indian Penal Code prescribing the death penalty for repeat rape offenders which was rightly introduced by the legislature to impose a deterrent against such crimes.”

 

 

Importantly Ponda also submitted that the applicability of Section 376(e) in the present case could be questionable but it is in the consonance with their legal principles. The hearing has yet to be continued. 

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