In the confirmation hearing of death penalty awarded to Vijay Jadhav, Mohammad Qasim Shaikh and Mohammad Salim Ansari for the gangrape of an 18-year-old call centre employee in July 2013 and 22-year-old photojournalist in August 2013, advocate Yug Mohit Chaudhary argued that the government's views on Section 376(e) of the Indian Penal Code are outdated and violative of the Constitution.
Yug Chaudhary submitted before the bench of Justice BP Dharmadhikari and Justice Revati Mohite Dere that views seeking the death penalty for the trio were violative of all constitutional principles.
Section 376(e) states:
"Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section1 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death."
The three had been convicted and sentenced to death under Section 376(e) of IPC by the Sessions Court on March 20, 2014, while one more accused, Shiraj Khan, was sent to a juvenile home as he was a minor. All three have challenged their conviction and the new amendment.
Previously, Chaudhary submitted that Section 376(e) was arbitrary and it entailed disproportionate punishment. He also pointed out how this particular Section violated Articles 14 and 21 of the Indian Constitution.
"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. Therefore, is our legislation saying that the offence of repeat rape that does not cause homicide is harsher than the offence of murder," Chaudhary asked.
"How can one prescribe death in a case where another life has not been taken," he argued.
He cited judgments of the Indian and American Supreme Courts mandating that the death sentence was an unfair punishment in cases of non-homicidal offences. Such punishment had been termed by the US Supreme Court as a "savage sentence", he said.
Additional Solicitor General Anil Singh and Maharashtra Advocate General Ashutosh Kumbhakoni had defended the new amendment and argued that the offence of rape, even when non-homicidal, deserved to be treated as the gravest offence, for rape was not just a physical attack, but it destroyed the victim's soul, her personality, and often, rendered the rest of her life meaningless.
Amicus curiae Aabad Ponda defended the constitutional validity of Section 376(e) and said:
"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."
Importantly, Ponda also submitted that the applicability of Section 376(e) in the present case could be questionable but it is in consonance with legal principles.
The hearing will continue in the case.