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

Wednesday, May 29, 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)

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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

Abolish Death Penalty India

Wednesday, May 29, 2019

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

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