Abolish Death Penalty India: Shakti Mills gang rape case

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Wednesday, May 29, 2019

IPC section on death penalty for rape legally right: HC told (Bombay)

04 MARCH 2019 Last Updated at 9:11 PM | SOURCE: PTI

Mumbai, Mar 4 The Indian Penal Code section that prescribes death penalty for repeat rape offenders was rightly introduced by the legislature to impose a deterrent against such crimes, the amicus curiae in the Shakti Mills gangrape case told the Bombay High Court on Monday. However, the application of this Section 376 (E) in the present case could be questionable, the amicus told a bench of justices B P Dharamadhikari and Revati Mohite-Dere which was hearing a challenge to the constitutional validity of the provision through writ petitions filed by the three death row convicts in the Shakti Mills case.

Section 376 (E) of the IPC that provides for the death penalty for repeat rape offenders was introduced by the Centre through an amendment in existing laws in 2013 following the December 2012 gangrape case in New Delhi. Advocate Abad Ponda, appointed by the court as the amicus curiae to assist it in the case in 2014, told the HC that the section was in consonance with all legal and constitutional principles. However, the section's application in the present case could be questionable, Ponda said. Earlier, during the hearing, the bench had asked the Union government what was the purpose of introducing section 376 (E) of the IPC since another sub-section, sub-section A of section 376, already prescribed the maximum punishment of death for offences of rape.

However, both the Union government and the amicus curiae defended the new section. They told the HC while sub-section A dealt with a grave case in which the victim died, or was reduced to a vegetative state, section 376 (E) provided that a person previously convicted under any sub-section of section 376 was liable to be sentenced to the maximum punishment of death for the subsequent offence of rape, if the court deemed fit. However, while the Centre has maintained that such repeat offence can occur anytime after the first offence, Ponda told the court the accused person could be termed a repeat offender only if the second offence was committed after he was convicted for rape for the first time.

The amended law has been challenged by Vijay Jadhav, Mohammad Kasim Bengali and Mohammad Salim Ansari, who were sentenced to death by a sessions court in April 2014 for raping a photojournalist in Shakti Mills compound here on August 22, 2013. The sessions court had awarded them the death penalty as they were also convicted for having raped a telephone operator in July 2013. The trials in both cases were held simultaneously and the conviction was handed out the same day. However, the sentences were awarded to the convicts within a period of two weeks from each other. The sessions court first pronounced the punishment in the telephone operator case, sentencing the convicts to life imprisonment.

It subsequently allowed a prosecution plea to charge the convicts under Section 376E and awarded the death penalty to three out of the five convicts in the Shakti Mills case. The three, however, challenged the death sentence and the constitutional validity of Section 376 (E). Their counsel in the HC, advocate Yug Chaudhry, has argued that the first conviction ought to be secured before the second offence was committed for Section 376E to be applicable in a rape case. AYA RSY RT

Source: https://www.outlookindia.com/newsscroll/ipc-section-on-death-penalty-for-rape-legally-right-hc-told/1489937 (accessed on 29 May 2019)

Shakti Mills case: Govt cites Aruna Shanbaug, says rape a grave crime (Maharashtra)

A division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dhere, asked the state to explain on Friday, whether section 376 (E) created a new category of offence which peculiarly dealt with repeat offences of rape.

WRITTEN BY

Mustafa Plumber

Mar 1, 2019, 06:10 AM IST

The Maharashtra Government on Thursday relied on the case of KEM hospital nurse, Aruna Shanbaug to drive the point that a rape victim may be alive but the offence cannot be said to be less than that of murder. Thus it would not be unconstitutional to grant death penalty under amended section 376 (E) of the Indian Penal Code, to repeat offenders. Advocate General Ashutosh Kumbhakoni made the arguments while opposing the petition, filed by culprits Vijay Jadhav, Kasim Bengali and Salim Ansari, convicted in the infamous Shakti Mills rape case, challenging the Constitutional validity of section 376 (E) of the Indian Penal Code which stipulates death penalty for second-time offenders. The amendment was brought in post the Nirbhaya case.

Kumbhakoni said Shanbaug remained in a vegetative state for over 30 years and this shows that "Rape take away the Right to Life, provided in Article 21 of the Constitution of India. Victim can become a breathing corpse, does that mean its a lesser offence." Shanbaug was raped by a colleague working in the hospital and had later pleaded for passive ethunsasia which was rejected by the Supreme court and later she died in the hospital ward. Kumbhakoni also argued that in a murder case, there can be exception like person commits murder, without intent or knowledge, thus the culpabality will be different. But in a rape case there cannot be exceptions carved out. Moreover, offences cannot be comparable. "In the scales of justice it is impossible to weigh whether rape is graver than murder or viceversa. It is not a mathematical problem where by applying complex formulas one can solve it."

Shakti Mills rape case

Opposing the argument of the petitioners that death sentence for repeat offenders of rape under section 376 (E) is not proportional to the crime committed. Kumbhakoni said "India has a victim centric sentencing approach. Rape is a graver offence than murder and the impact on the society at large of the offence has to be considered before giving the punishment." Rejecting the arguments of the petitioners that section 376 (E) provided mandatory death sentence and not other punishment for second time offenders. Kumbhakoni argued that it would be the discretion of the trial judge and not in all cases death penalty will be handed down. As not every case would fall under the rarest of rare category." A division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dhere, asked the state to explain on Friday, whether section 376 (E) created a new category of offence which peculiarly dealt with repeat offences of rape.

A Separate Category Of Offence

Source: https://www.dnaindia.com/mumbai/report-shakti-mills-case-govt-cites-aruna-shanbaug-says-rape-a-grave-crime-2725160 (accessed on 29 May 2019)

"Rape A Very Serious Offence": Centre Defends Death Penalty In Court (Maharashtra)

The three petitioners were convicted for raping a city-based photojournalist in the premises of defunct Shakti Mills in August 2013.

All India | Press Trust of India | Updated: February 27, 2019 23:31 IST

MUMBAI: Justifying the legislature's decision to provide death penalty for repeat offence of rape, the Union government on Wednesday told the Bombay High Court that rape laws had been amended in 2013 to introduce a powerful deterrent against such crimes. The Centre made the submission before a bench hearing writ petitions filed by the three convicts in the Shakti Mills gangrape case here challenging the constitutional validity of the death sentence awarded to them by the trial court in 2014.

Arguing on behalf of the Union, Additional Solicitor General Anil Singh told the high court that the IPC Section 376, that comprise the penal provisions for the offence of rape, had been amended following much deliberation. None of the provisions introduced through the Criminal Law (Amendment) Act, 2013, was unconstitutional, he noted. "An act of rape is a very serious offence for even when it is non-homicidal, it doesn't merely cause physical harm to the victim, but, it affects her soul and her personality too," General Singh said. "In most instances, because of the stigma attached to the offence of rape, victims do not come forward to register a case.

"Therefore, considering that it is the state''s duty not just to punish, but also to prevent a crime, the new, stricter provisions governing the offence of rape were introduced in 2013," he said. General Singh was arguing before the bench of justices BP Dharamadhikari and Revati Mohite-Dere that is hearing the writ petitions filed by the three convicts - Vijay Jadhav, Kasim Bengali and Salim Ansari. The convicts, through their counsel Yug Chaudhry, had argued on the previous hearing that the death sentence awarded to them violated their fundamental right to life.

They had also said IPC Section 376 (E), under which they had been granted the death penalty, had been introduced by the legislature in "haste" and in an arbitrary manner, without laying down the procedure under the Code of Criminal Procedure for its implementation. General Singh, however, disagreed with their arguments. He said the new provisions were in consonance with legal requirements and they do not need to stand the test of constitutional rights. "Section 376 (E) does not introduce a new category of punishment, and therefore, the existing provisions governing rape laws, the death penalty, and enhanced punishment in cases of repeat offences, are adequate to govern its implementation," the ASG maintained.

'Rape A Very Serious Offence': Centre Defends Death Penalty In Court

The Centre made the submission before a bench hearing writ petitions. (File)

In April 2014, a sessions court in the city held five persons guilty in the case. One of them, Siraj Khan, was sentenced to life imprisonment. A second person, a minor, was sent to a correctional facility. Jadhav, Bengali and Ansari were awarded the death penalty under the then newly introduced section 376 (E) of the IPC since the three had also been convicted in a previous case of gangrape. The trio, however, moved the High Court soon after their conviction, challenging the constitutional validity of section 376 (E). In March 2013, following the December 2012 gangrape case in New Delhi, the Union government 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 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. The three petitioners were convicted for raping a city-based photojournalist in the premises of defunct Shakti Mills in August 2013.

Source: https://www.ndtv.com/india-news/rape-a-very-serious-offence-centre-defends-death-penalty-2000344 (accessed on 29 May 2019)

Shakti Mills gangrape case: Convicts challenge IPC Section 376 (E) providing for death sentence in rape cases

Feb 22, 2019 21:59:51 IST

Mumbai: The counsel for the three men convicted in the Shakti Mills gangrape case in Mumbai raised questions before the Bombay High Court Friday on the legal soundness of Section 376 (E) of the Indian Penal Code under which they were awarded the death sentence in 2014.

Advocate Yug Chaudhry, representing the death row convicts Vijay Jadhav, Kasim Bengali and Salim Ansari, told the court the legislature had brought in several provisions of the Criminal Law Amendment Act that provides for, among other things, harsher punishment for rape, in "haste".

Representational image. Sachin Gokhale/Firstpost

Chaudhry questioned the idea behind Section 376 (E) that provides for the death sentence for a repeat offender of rape. He said while the section for enhanced punishment was introduced in the IPC through the Act, the legislature had failed to introduce a well-laid out procedure in the CrPC for the implementation of the new IPC section. "For instance, while the section provides that a person who has previously been convicted for the offence of rape can be awarded the enhanced sentence of death penalty in case of repeat offence, it does not clarify how much minimum time there must exist between the two offences or the conviction date of both the offences," Chaudhry argued.

"In the present case, the sessions court convicted the accused in two separate cases of rape committed a month apart. But the conviction in both the cases was awarded within a day from each other," he argued. Chaudhry argued that no provision of law must be implemented arbitrarily and the law mandated the CrPC lay down the procedure for implementing all penal provisions. He also cited previous judgments of the Supreme Court and some Law Commission reports that prescribed enhanced punishment for repeat offenders only after ascertaining the possibility of their reform after their first sentence.

A bench of Justices BP Dharamadhikari and Revati Mohite-Dere is conducting the final hearing on the writ petitions filed by the three convicts challenging the death sentence awarded to them under IPC Section 376 (E). In April 2014, a Mumbai court had found five persons guilty in the 2013 gangrape case. One of them, Siraj Khan, was sentenced to life imprisonment, while a second person, a minor, was sent to a correctional facility. Jadhav, Bengali and Ansari were sentenced to death under the then newly-introduced Section 376 (E) since they had also been convicted in a previous case of gangrape.

The three, however, moved the high court 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 the IPC Section 376 (E) 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 gangrape case. In March 2013, the Union government 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 19 March, 2014, the three petitioners were convicted for raping a city-based telephone operator. The next day, they were convicted for raping a photojournalist in the premises of defunct Shakti Mills in Mumbai. Both crimes had been committed in 2013 within a month from each other. While the sessions court was scheduled to begin arguments on their sentence, the Maharashtra government moved an application seeking framing of an additional charge under Section 376 (E) since they had also been convicted in another case of rape. The sessions court found merit in the submissions of the prosecution and in April 2014, awarded the maximum punishment of death to the three petitioners, noting they were repeat offenders.

While the state government filed a petition in the high court seeking that the death sentence be ratified, the three convicts filed pleas in the high court challenging the constitutional validity of the Indian Penal Code section under which they were awarded the punishment. The Central Government is likely to begin its arguments in the case Wednesday.

Source: https://www.firstpost.com/india/shakti-mills-gangrape-case-convicts-challenge-ipc-section-376-e-providing-for-death-sentence-in-rape-cases-6138101.html (accessed on 29 May 2019)

Friday, February 6, 2015

High Court refuses to hear petition on death penalty

Jan 11, 2015 - Shahab Ansari |

Mumbai

The Bombay high court has refused to hear the petition for confirmation of death penalty awarded to the Shakti Mills gang rape case accused till the petitions filed by them challenging the constitutional validity of the Act that paved way for court to sentence them to death is decided. A division bench of Justice V.K. Tahilramani and Justice A.K. Menon issued a direction last month that “this matter” (confirmation petition filed by government of Maharashtra to get death penalty confirmed by the high court) should be placed before them for further directions after both the petitions filed by convicts Mohammed Kasim Shaikh alias Kasim Bengali and Mohammed Salim Ansari, challenging the validity of law is decided.

A confirmation petition is filed by the state because whenever the trial court awards death penalty to any convict it says that the punishment should be implemented only after the high court confirms lower courts’ judgment. In this case too the trial court said so and hence the state filed a confirmation petition. Mostly, the confirmation petition and appeal filed by accused against the trial court judgment is heard together, but in this case the accused have not challenged the trial court order so far.

Now the high court has refused to hear the confirmation petition in the Shakti Mills gang rape case because two petitions filed on behalf of two accused challenging framing on them additional charges under Section 376 (E) of the Indian Penal Code, which provides for maximum sentence of death in the case of a repeat offence of rape, is still pending before the high court.

Defence lawyer Moin Khan on behalf of Salim Ansari and advocate Anjali Awashti on behalf of Kasim Bengali had challenged the framing of Section 376 (E) on accused when the trial court framed this charge after pronouncing them guilty of gang raping a photojournalist. The accused were already convicted for raping a telephone operator-cum-receptionist at the same place and were facing death penalty after the new charge was framed on them. They also challenged the constitutional validity of this section. They had challenged Section 376 (E) on the ground that it is contrary to the Constitution of India. This provision was added to the Section 376 i.e. rape after the December 2012 Delhi gang rape.

While hearing this appeal, a division bench of Justice Naresh H. Patil and Justice Abhay Thipse in March 2014 had asked the Attorney General of India to file a reply on the constitutional validity of Section 376(E) and the matter is still pending. Taking this into consideration, another bench of the high court has said that it would hear the confirmation petition only after said petition is decided.

Jadhav, Bengali, Ansari, Siraj Rehman and a minor boy raped the 22-year-old photojournalist when she had gone to the mill compound in central Mumbai with a male colleague on an assignment on August 22, 2013. Since Jadhav, Bengali and Ansari were also convicted and sentenced to life imprisonment for the gang rape of an 18-year-old telephone operator, they were awarded death penalty in the photojournalist’s rape case.

Source: http://www.asianage.com/mumbai/high-court-refuses-hear-petition-death-penalty-839 [last accessed 06.02.2015]

The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George