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Pallavi Lakshmi Lakra

Pallavi Lakshmi Lakra | Updated: Jun 04, 2019 | Category: IPC

Constitutional Validity of Section 376 E- Recent Update

In a recent development, on June 3rd the Bombay High Court upheld the constitutional validity of Section 376 E of the Indian Penal Code. It states about the punishment of death penalty or imprisonment for life for repeated rape offenders.

In this article, we’ll be discussing about the details of Section 376 E of Indian Penal Code, It’s constitutional validity and the recent development.

Section 376 E Indian Penal Code

In the year 2013, the Criminal Law (Amendment) Act, 2013 came into existence after the Nirbhaya Case.

SECTION 376E

The definition of rape widened by including the term oral and digital penetration. Additionally, there is death penalty to repeated rape offenders under section 376, 376 A, and 376 D. Furthermore, section 376 A includes the provision for causing death of victim, and 376 D prescribes the punishment of 20 years life imprisonment for gang rape convict.

Section 376 E states, “if there is a previous conviction of an offence under section 376 or section 376 A or section 376 AB or section 376 D or section 376 DA or section 376 DB and subsequent conviction of an offence under any of the said sections, it is punishable with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.”

Gang Rape case in Shakti Mills

In 2013, there was a gang rape of a photo journalist by five adult men and two juveniles. Three men were guilty in another gang rape of a 19-year-old at Shakti Mills. After the conviction, the prosecution added Section 376 E to the three repeat offenders, namely- Vijay Jadhav, Mohammad Qasim Shaikh, and Mohammad Salim Ansari. The Court gave death penalty to all three.   

Both the Trials were simultaneously done. The Court subsequently allowed the prosecution to charge the convicts under the said section.

Afterwards, the advocate of the three convicted stated that the death penalty awarded was a disproportionate punishment. He said it violated their fundamental rights bestowed under Article 21 and Article 14 of the Indian Constitution.

“Section 302 (punishment for murder) under the IPC entails a minimum punishment of life and a maximum of death for an offence of murder. Section 376E, however, entails a minimum punishment of imprisonment for one’s full life without any possibility of remission. Therefore, our legislation saying that the offence of repeat rape that doesn’t cause homicide is harsher than the offence of murder,” he said.

A division bench consisting of Justices B P Dharmadhikari and Revati Mohite Dere dismissed the Petition and upheld the constitutional validity of Section 376 E.  

Constitutionality of Section 376 E

Section 376 E of Indian Penal Code was introduced to impose a deterrent against the heinous crime of rape. However, Shakti Mills case raised the question regarding the applicability of the section. 

This section treats the offence of repeated rape harsher than the offence of murder. Further Advocate Yug Mohit argued that, “How can one prescribe death in a case where another life has not been taken.”

The government in response to this contended that the rape even if non-homicidal deserved to be treated as a grave offence. Because a rape offence is not just a physical attack, but an attack on the victim’s soul and often makes the life of the victim worthless. Additionally, it is highly unrealistic to compare rape with murder cases, as the after-effect of rape is not a physical but psychological instead. 

The Court said that, “Section 376 E of IPC is not ultra vires to the Constitution and hence need not be quashed in the present case.”

Conclusion

Section 376 E does not violate the principle of proportionality or violate Article 14 and 21 of the Constitution. The after effect of rape is disastrous, and it can even compel her to suicide. Hence, there is infringement of victim’s right to life, which is guaranteed under Article 21 of the Constitution.  So in no way, we can say that the offence of rape is graver than that of murder. 

For more information contact our team of experts at LawyerINC.

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Pallavi Lakshmi Lakra

Pallavi Lakshmi Lakra

Pallavi is a Legal Associate at Lawyerinc. She is graduated from Gujarat National Law University having areas of expertise in Legal and financial content writing. She is having keen interest in legal research, drafting and legal advisory. She likes to keep herself updated with the changing face of legal arena.


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