Constitutional Validity of Section 376-E of the Indian Penal Code

By Vishwa Patel

Introduction

Recently, the Bombay High Court, while dismissing the appeal from the convicts of Shakti Mill gang-rape case, ruled on the constitutional validity of the Section 376-E of the Indian Penal Code (hereinafter referred to as IPC) in Mohd. Salim Mohd. Kudus Ansari v. State of Maharashtra & Anr. The said provision was added to the IPC by the virtue of the Criminal Amendment Act of 2013 and it reads as under:

“Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB 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 difference between Section 376 and 376-E is that the former provides the punishment for a person who has committed the offence of rape for the first time and the latter provides the punishment for a repeat rape offender (i.e. a person who has committed the offence of rape more than once).

 

Constitutionality of Section 376-E of IPC

The petitioner challenged the constitutional validity of Section 376-E based on Articles 14 and 21 of the Indian Constitution by arguing that the said provision creates a new category of punishment, i.e. imprisonment for the remainder of one’s natural life. It was argued that the said punishment is nowhere present among the various punishments which have been prescribed by Section 53 of the IPC. He stressed on the fact that creating such a kind of new punishment would be inconsistent with existing provisions, relating to punishment in the IPC. Further, it was submitted that there is no mention of imprisonment till the remainder of one’s natural life under Section 418 of the Code of Criminal Procedure, 1973 and thus no machinery for the execution of such sentence has been provided. It was pointed out that Section 376-E takes life and liberty of someone without any procedure established by law and thus, it violates Article 21 of the Indian Constitution.

It was also stated that Section 376-E is arbitrary as a more serious offence such as murder, allows punishment for varying period i.e. from life imprisonment (the convict could be pre-maturely released after serving 14 years) to death, whereas the offence of repeating rape under Section 376-A, being of a lesser degree then murder, prescribes more grave punishment. It was submitted that section 376-A also violates Article 14 of the Indian Constitution as there are numerous provisions for punishing repeating offenders under IPC, however, Section 376-E does not follow the ‘offence paradigm’ as envisaged in IPC.

Further, by placing reliance on Section 396 & Section 460 of IPC, the petitioner tried to show that higher punishment was only prescribed where death occurs while committing another offence & there is no higher punishment for the second dacoity, or second robbery or second trespass and thus there is no rationale for treating second rape differently. It was pointed out by the counsel of petitioner that death penalty under Section 376-E violates Article 21, as it prescribes a sentence of death for an offence where no death has been caused & thus, violates the principle of ‘proportionality’.

The petitioner pressed on the fact that the punishment of ‘imprisonment for rest of natural life’ under Section 376-E of IPC takes away the pardoning power of the President and Governor, which has been provided under Articles 72 and 161 of the Constitution of India respectively. The petitioner also provided that the standard laid down in Bachan Singh v. State of Punjab, that it is only in the rarest of rare case death can be awarded and when no alternative is available is also violated by Section 376-E of IPC.

Grounds on which Section 376-E is held to be constitutionally valid:

The Division Bench of Bombay High Court, after considering the arguments from both sides, did not find any merit in the challenge of Constitutionality of Section 376-E and thus, dismissed the appeal.

Following were the grounds on which the bench found Section 376-E to be constitutionally valid:

• The bench observed that the Apex Court in para 90 of Union of India v. V. Sriharan, held that there is no statutory provision prescribing the extent of punishment provided in the Penal Code and that, the Court has not carved out a new punishment. The bench provided that para 260 of Sriharan has noted that life imprisonment means imprisonment for the rest of the life or the remainder of the convict’s life. The bench also pointed out various case laws that provide that under IPC ‘imprisonment for life’ is equivalent to ‘imprisonment for the remaining life of the convict’ [See Swami Shraddhananda v. State of Karnataka]. Thus, the bench found no merit in the argument that challenged the creation of a new category of punishment.
• With respect to the argument concerning the absence of any mechanism to execute such a kind of sentence, the court observed that Section 418 of the CrPC will be dealing with the execution of punishment laid down in Section 376-E of the IPC. The bench provided that the term ‘imprisonment for life’ used in Section 376-E of the CrPC is to be interpreted as ‘imprisonment for the remainder of one’s natural life’. Thus, the bench found no problem regarding the execution of Section 376-E of IPC and didn’t find the said section to be violative of Article 21 of the Indian Constitution.
• The bench provided that the offence of rape can be considered to be graver than the offence of murder. The bench observed following –

“There is no violation of Article 21 of the Constitution, as there is a machinery/procedure for implementation and execution of the sentence of imprisonment for life, which means till the remainder of one’s life, under Section 376-E. The effects of rape are not only physical but also psychological. Her right to live with human dignity is infringed, which is constitutionally guaranteed to her under Article 21 of the Constitution.”

Thus, the bench didn’t find any arbitrariness in Section 376-E and concluded that the punishment provided under this section is not disproportional.

• Regarding the argument that Section 376-E hinders constitutional remedies provided under Article 72 and Article 161, the bench clarified that a person punished with imprisonment for the remainder of his life would be entitled to claim remission, commutation, etc. under Article 72 and Article 161, and hence, there is no hindrance of the constitutional remedies available to the convict.

Concluding Remarks

Rape is one of the most heinous offences and it is very difficult to control the offence without creating deterrence. By upholding the constitutional validity of Section 376-E of IPC, the Bombay High Court ensured that said aim is achieved and rape convicts don’t think of committing this heinous crime again.

 

[The author is a student at Gujarat National Law University and can be contacted at vishwapatel683@gmail.com]