This article is written by Kritika Garg from National Law University Odisha. This is an exhaustive article which explains the Shakti Mills rape case and whether the principle of proportionality was ignored in the case.
Introduced via the Criminal Law (Amendment) Act, 2013, Section 376E of the Indian Penal Code, 1860 was questioned before the High Court of Bombay for violating Article 14 (Right to Equality) and Article 21 (Right to life and liberty) of the Constitution of India. The impugned Section provides for life imprisonment to a repeated rape offender. The High Court upheld the Section stating that the Section is not violative of any fundamental right conferred under part III the Constitution. However, the principle of proportionality which provides for proportionality between the crime committed and the punishment awarded is said to be overlooked in the judgement. This article focuses upon the facts and the judgement passed in the State of Maharashtra vs Chandrabhan Sudam Sanap case to find out whether the principle of proportionality was overlooked by the High Court while passing the judgement, or not.
Facts of the case
On 22nd August 2013, a 22-year-old photojournalist was gang-raped by five men, namely, Mohammed Kasim Hafiz Shaikh Alias Kasim Bengali, Mohammed Salim Ansari Vijay Jadhav, Mohammed Salim Mohammed Kudus Ansari, and two unnamed juveniles, in the premises of Shakti Mills [‘Mill’], near Mahalaxmi, Mumbai, Maharashtra.
The police statement stated the happening of the crime when the victim visited the Mill with her male colleague on an assignment to take pictures of the deserted Mill around 5:00 pm in the evening. Both of them were attacked by the accused, who tied the male colleague with belts, and raped the victim in turns, all while holding a sharp piece of a broken beer bottle near her neck. The rapists even took pictures of the victim and threatened to release the same on social media if she tried to inform anybody about the incident. Then, around 7:00 pm in the evening, the victims were then thrown at the railway tracks from where they were taken to Jaslok Hospital for treatment. The police recorded her statement on 26th August 2013 and she was discharged from the hospital on 27th August 2013.
Half a month later, a similar incident was reported by a telephone operator who was gang-raped by three of the same rapists namely, Mohammed Kasim Hafiz Shaikh, Vijay Jadhav, Mohammed Kudus Ansari at the same place, i.e., at the Shakti Mills.
Both these cases were then tried in the Sessions Court where the accused were charged under Section 376 of the Indian Penal Code, 1860(IPC). The Sessions Court convicted the accused and sentenced the convicts for life imprisonment. However, the Special Public Prosecutor filed an application in the Sessions Court under Section 211(7) of the Code of Criminal Procedure, 1973 (CrPC), pleading for the prosecution of the three convicts, namely Mohammed Kasim Hafiz Shaikh Alias Kasim Bengali, Mohammed Salim Ansari Vijay Jadhav, and Mohammed Salim Mohammed Kudus Ansari under Section 376E. Section 376E states that a person previously convicted under Section 376-A, Section 376-AB, Section 376-D, Section 376-DA or Section 376-DB shall be punished with life imprisonment i.e. imprisonment till death if convicted again under the same sections.
The Sessions Court accepted the application. The convicts pleaded not guilty of the charges under Section 376-E and filed two writ petitions before the High Court of Bombay challenging the constitutional validity of Section 376-E and seeking a stay on the proceedings.
However, the Sessions Court awarded life imprisonment (till death) to all the three convicts under Section 376-E of the Indian Penal Code. In 2018, Vijay Jadhav filed another petition before the High Court challenging the constitutional validity of Section 376-E. All the petitions were then tagged together for consideration.
The main contention of the petitioners was that Section 376-E of the IPC is unconstitutional as it is violative of Article 14 and Article 21 of the Constitution. Section 376-E introduces a new form of punishment which is not envisaged as a punishment in the IPC not even under Section 53 which defines various forms of punishments that can be awarded by a court of law. Further, Section 376-E overlooks the constitutional and statutory power of remission and violates the principle of proportionality by awarding death sentence irrespective of the nature of the offence.
The counsel on the behalf of the petitioners contended that imposition of the death sentence curtails the right to life enshrined under Article 21 of the Constitution. The CrPC also does not contain any provision like life imprisonment until the person’s natural death. Since a person’s right to life cannot be taken away except for the procedures established by law, Section 376-E violates Article 21 of the constitution and thus, it should be held invalid.
Further, the counsel argued that Section 376-E is arbitrary in nature since there exists no procedure which defines the implementation of the impugned Section. Thus, Section 376-E stands void for being discriminatory and vague in nature. However, the main contention which became the centre point of this case was the overlooking of the proportionality principle. As per the counsel of the petitioners, the punishment awarded under the impugned section is highly disproportionate to the crime itself. A death sentence is awarded even in those cases in which death has not been caused.
The judgement of the High Court
The High Court in its judgement upheld the constitutional validity of Section 376-E of the IPC. The court relied upon the parameters laid down in the judgement of the Supreme Court in the case of State of Bihar v. Bihar Distillery Ltd. for determining the constitutional validity of the impugned Section. These parameters are supposed to be kept in mind while deciding the constitutional validity of an enactment. The parameters are as follows:
- Begin by presuming the statute in question to be constitutional;
- Strike down only those parts of the law which are impossible to sustain while upholding the rest;
- Do not approach the law with a view of finding defects in drafting or in the language used;
- Consider that the law has been formulated with the will of the people which cannot be interfered with;
- If the law is clearly unconstitutional, then strike it down;
- The Court must recognize the importance of the legislative process and accord due regard and deference to it.
Further, the court observed that the death of the victim is not essential for awarding the death sentence. There are offences under IPC with the death penalty even if death has not occurred, but that does not make death penalty unjustified. Survival of a victim does not make the crime, less heinous and the death penalty cannot be unjustified for the sole reason of the victim’s survival.
On the point of introducing a new form of punishment by the inclusion of Section 376-E, the court stated that Section 376-E does not prescribe a new form of punishment as the punishment is within the prescribed limits of life imprisonment and is awarded proportionally in the interest of the victim and society at large. Further, the apex court in the case of Subhash Chander v. Krishan Lal held that life sentence means imprisonment for the entire life of the convict unless the government remits the entire or a part of the sentence under Section 432 of the CrPC.
Coming to the point of remission as raised by the counsel of the petitioner, the court cited the case of Union of India vs. V. Sriharan where it was held that life sentence was defined as imprisonment for rest of the life, subject to the right of remission as provided under Article 72 and Article 161 of the Constitution and Section 432 of the CrPC. The court then held that the constitutional remedies in the form of rights to claim remission, commutation, reprieve, etc shall remain untouched by the court as they shall remain available to the convicts even after the application of Section 376-E of the Constitution.
The court observed that Section 376-E is not arbitrary in nature and cannot be termed vague as there exists a just and fair procedure under CrPC to deal with any contingency arising out of Section 376-E. Further, the determination of punishment is done by the institution of the judiciary which is well-equipped with the knowledge of law, experience, talent and infrastructure to study the detailed parts of the cases and apply laws and legal principles on the subject.
Therefore, the contention of the petitioners to strike down Section 376-E of the IPC stands invalid as the same is not in violation of Article 14 and Article 21 of the Constitution.
Proportionality principle, in the context of criminal law, refers to the idea of ensuring that the punishment of a crime is in proportion to the severity of the crime. The main purpose behind this principle is to strike down extremely harsh punishments which are disproportionate to the crime itself.
The Supreme Court in the case of Modern Dental College Case and Research Centres & Ors. v. State of Madhya Pradesh and Justice K.S. Puttaswamy v. Union of India made it very clear that cases involving the question of violation of rights must have a detailed proportionality test which has four major aspects:
- First, the impugned provision must have a legitimate state aim.
- Second, there must be a reasonable nexus between the provision and the aim sought to be achieved.
- Third, the impugned provision must be the last method available to achieve the aim.
- Fourth, there must be a balance between the rights infringed and social benefit obtained by the enforcement of the impugned provision.
In the Shakti Mills case, one of the main arguments by the counsel of the petitioners was that Section 376-E ignores the proportionality principle by awarding the death sentence which is disproportionate to the nature of the offence. The counsel contended that murder under Section 302 of the IPC is more severe than rape, however, the impugned section awards death sentence irrespective of the degree of damage caused to the victim. A death sentence is awarded even in cases where the victim is not killed. As per the judgement of the apex court in the case of Bachan Singh v. State of Punjab, it is only in the rarest of rare cases where the death penalty should be awarded. Further, the Verma committee established for the recommendations in the rape punishment post the Nirbhaya Rape case (Mukesh & Anr v. State for NCT of Delhi & Ors.) of 2012 did not consider the death penalty as an appropriate punishment for rape cases. However, Section 376-E overlooks the aforementioned principles of law established under the Bachan Singh case and awarded death penalty in many future cases.
The court, while addressing the issue pertaining to the proportionality test, relied upon the fact that the impugned section has been passed for deterring rapes. Whenever it comes upon determination of a criminal sentence, it is generally presumed to be in the favour of the State. Therefore, while adjudicating upon the cases of violation of fundamental rights, proportionality by its nature precludes complete deference to the state.
Furthermore, the court held that rape is a crime which has a severe effect on women and society. A victim of rape suffers from trauma and has to live with it for the rest of her life. Rape is not only a physical offence, rather it is a psychological offence as well. It’s an infringement of a person’s right to live a dignified life. Rape is worse than murder, therefore, the punishment of the death penalty is proportionate.
While this judgement of the High Court focused more upon the ‘will’ of the State, it overlooked the need for judicially analyzing the other possible punishments that could have been proportionate to the crime itself.
The death penalty has been recognised as a qualitatively different form of punishment around the globe including India. The judgement of the apex court in the case of Bachan Singh v. Union of India clearly mentioned that the death penalty shall be awarded in the ‘rarest of rare’ cases. Death penalty is an irrevocable punishment which cannot be corrected in the future, in case of any error found in the judgement. Therefore, it becomes extremely crucial to ensure that the provision of the death sentence is used judiciously.
While rape is a heinous crime which needs to be punished with hard punishments, it in no way paves a way for the court to punish the accused with the hardest punishment irrespective of the proportionality between the punishment and the crime. Therefore, it is really essential for the courts to scrutinise such laws carefully on the constitutional grounds in order to ensure that the laws not only punish the offenders but also meet the constitutional validity without overlapping the already established laws and legal principles.
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