MUMBAI: In a significant ruling, the Bombay High Court on Monday upheld the constitutional validity of a provision introduced post the 2012 Nirbhaya gangrape case, allowing life imprisonment or death penalty to repeat convicts in rape cases, and dismissed the petitions filed by three convicts in the sensational Shakti Mill gangrape case of 2013.
Delivering the judgment, a division bench of justices B P Dharmadhikari and Revati Mohite Dere observed that the offence of rape was, in a sense, graver than murder.
The three convicts in the Shakti Mill gangrape case had challenged the constitutional validity of section 376(e) of the Indian Penal Code (IPC), under which they were sentenced to death for a repeat offence by a sessions court in 2014 -- the first such conviction under the changed law.
The three were convicted for raping a 22-year-old photojournalist inside the abandoned Shakti Mills compound in central Mumbai on August 22, 2013 and for raping an 18-year-old telephone operator at the same place some months earlier.
With the dismissal of the petitions, another bench of the high court will now take up for final hearing the appeals filed by the convicts challenging their conviction and the death penalty imposed on them by a sessions court and also a petition filed by the state government for confirmation of their sentence.
"We are of the opinion that section 376(e) of the IPC is not ultra vires to the Constitution and hence, need not be quashed in the present case. Needless to state that the stigma that is attached to rape victims is lifelong. In a sense, the offence of rape can be said to be graver than that of murder," the bench said.
Under section 376(e), IPC, which was introduced by the Criminal Law (Amendment) Act, 2013, repeat offenders in rape cases face life imprisonment or death penalty.
The amendment was introduced on the basis of recommendations of the Justice J S Verma Committee, which was formed to consider changes in the existing laws to deal more sternly with offenders in cases of sexual offences following the nationwide outrage over the brutal gangrape of a 23-year-old paramedical student in Delhi.
The victim died subsequently and was referred to as "Nirbhaya" (fearless) for her courage.
The petitions were filed by Vijay Jadhav, Kasim Bengali and Salim Ansari, who were among the four convicted in April, 2014 by a sessions court for raping the photo-journalist in August, 2013.
They were 19, 21 and 28 years of age respectively at the time of the incident.
The court had imposed death penalty on Jadhav, Bengali and Ansari as they were also convicted for raping the telephone operator at the same place, months before raping the photojournalist.
The fourth convict, Siraj Khan, was sentenced to life imprisonment and a minor accused was sent to a correctional facility.
The trio, in April 2014, had approached the high court, challenging the validity of section 376(e) of the IPC, and had contended that the sessions court had acted beyond its power in awarding them the death penalty.
They had argued that according to the Constitution, only the rarest-of-rare cases attracted capital punishment.
Therefore, the constitutional validity of section 376(e), IPC, which treated more than one offence of rape as "rarest of rare", needed to be examined, they had argued.
In its order, the bench noted that rape cases, including those involving gangrape, were on a staggering high in India and despite legislation and stringent punishment, cases of sexual assault were committed by predators with impunity, with no fear of law.
"A victim of rape undergoes a traumatic experience with which she has to live for the rest of her life. The effects of rape are not only physical, but also psychological," the bench said.
It noted that the victim's right to live with human dignity, which was guaranteed to her under Article 21 of the Constitution, was infringed.
"Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim. It is an ultimate violation of self-right to live with dignity," the bench said.
The judges noted that the effect of rape could have disastrous consequences.
For example, it could leave the victim in a vegetative state, compel her to commit suicide and could have a lifelong impact on her mental and emotional psyche.
"Not only young girls or women, but even children, newborns or toddlers are not spared. Where are we as a society heading? Do children, women not have the right to live with the human dignity guaranteed to them under Article 21 of the Constitution?," the judges asked.
Additional Solicitor General Anil Singh told the court that none of the provisions introduced through the Criminal Law Amendment Act, 2013 were unconstitutional.