MUMBAI: The three men convicted in the Shakti Mills gangrape case told the Bombay High Court Thursday that the death penalty awarded to them by the sessions court in 2014 was a "savage sentence" and violated their right to life.
The trio, through their lawyer, told the high court the death sentence violated their fundamental right to life guaranteed under Article 21 of the Constitution.
The convicts, Vijay Jadhav, Kasim Bengali and Salim Ansari, represented by senior counsel Yug Chaudhry, argued that the death sentence awarded to them was wrong in law since there existed an "enormous difference between the harm caused" by them and "the punishment" mated out to them.
Chaudhry made the arguments before a bench of Justices B P Dharamadhikari and Revati Mohite-Dere that began the final hearing Thursday on the writ petitions filed by the convicts challenging the death sentence awarded to them under section 376 (E) of the IPC.
In April 2014, a sessions court here held five persons guilty in the August 2013 gang-rape case in Mumbai, which had caused a national outrage.
One of them, Siraj Khan, was sentenced to life imprisonment, while a second accused, a minor, was sent to a correctional facility.
Jadhav, Bengali, and Ansari were sentenced to death under the then newly introduced section 376 (E) of the IPC since the three had also been convicted in a previous case of gang-rape.
The three, however, moved the HC soon after their conviction, challenging the constitutional validity of the law under which they were sentenced to death for a repeat offence.
The petitioners challenged the sessions court order allowing the prosecution to invoke section 376 (E) of the IPC when the trial was already underway.
They also challenged the constitutional validity of this section, brought in by the Union government after the infamous 2012 Delhi gang-rape case.
In March 2013, the Centre amended the rape laws in the country, introducing several stringent provisions, including section 376 (E).
This section says if a person, who has been previously convicted for rape under the IPC section 376, is subsequently found guilty in a similar offence, the courts can sentence him to imprisonment for the rest of his life, or, even award the death penalty.
On March 20, 2014, the three petitioners were convicted for raping a city-based photo-journalist in the premises of defunct Shakti Mills here.
The next day, while the sessions court was scheduled to begin arguments on their sentence, the state government moved an application, seeking framing of an additional charge under section 376 (E) since they had been convicted of raping another woman earlier.
The sessions court found merit in the prosecutions submissions and in April 2014, awarded the maximum punishment of death to the three petitioners, noting they were repeat offenders.
Advocate Chaudhry, however, questioned Thursday the state's move to frame additional charges when the trial in the case was "almost complete".
He also argued that section 376 (E) was arbitrary and that it entailed disproportionate punishment.
"Section 302 under the IPC entails a minimum punishment of life and a maximum of death for an offence of murder. Section 376 (E), however, entails a minimum punishment of imprisonment for one's full life without any possibility of remission," he said.
"Therefore, is our legislation saying that the offence of repeat rape that doesn't cause homicide is harsher than the offence of murder?" Chaudhry asked.
"How can one prescribe death in a case where another life has not been taken?" he argued.
He cited several judgements of the Indian and American Supreme Courts mandating that the death sentence was an unfair punishment in cases of non-homicidal offences.
Such punishment, he said, had been termed by the US Supreme Court as a "savage sentence", he argued.
The arguments are likely to continue on Friday.