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Constitutional Validity of Section 376-E of Indian Penal Code

Rape is the fourth-most common crime against women in India. According to National Crime Records Bureau 2013 annual report, 24,470 rape cases were reported across India in 2012.

The Indian Penal Code is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. At present, the IPC is divided into 23 chapters which contains 511 sections. Section 376 of IPC states that, (1) whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extent to imprisonment for life, and shall also be liable to fine.

Case Law:
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.

Section 376-E under IPC states:
Whoever has been previously convicted of an offence punishable under section 376 or section 376A or [section 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.

Constitutional Valid Of Section 376-E

The petitioner challenged the constitutional validity of Section 376-E based on Article 14 and Article 21 of the Indian Constitution by arguing that the said provision creates new category of punishment, i.e. imprisonment for the remainder of one's natural life. It was argued that the said punishment is nowhere present among the various punishments which have been prescribed by Section 53 of IPC (The punishments to which offenders are liable under the provisions of this code are first, death and secondly, imprisonment for life).

He stressed on the fact that creating such a kind of new punishment would be inconsistent with existing provisions, relating to punishment in the IPC. It was pointed out that Section 376-E violates Article 21 of the Constitution.

It was also stated that Section 376-E is arbitrary as a more serious offence such as murder, allows punishment for varying period i.e. from life imprisonment to death. However, Section 376-E does not follow the offence paradigm as envisaged in IPC.

Grounds on which Section 376-E is held to be constitutionally valid:

The Division Bench of Bombay High Court, after considering the arguments from both the sides, did not find any advantage in challenging the constitutionality of Section 376-E and so, dismissed the appeal. Following were the grounds on which the bench found Section 376-E to be constitutionally valid:

The bench observed that the Apex Court in Union of India vs. V. Sriharan, held that there is no statutory provision prescribing the extent of punishment provided in the IPC and that, the Court has not carved out a new punishment. The bench has noted that life imprisonment means imprisonment for the rest of the life. The bench also pointed out various case laws that provide that under IPC imprisonment for life is equivalent to 'imprisonment for the remaining life of the convict'. Thus, the bench found out no advantage in the argument that challenged the creation of a new category of punishment.

With respect to the argument concerning the absence of any mechanism to execute such a kind of sentence, the court observed that Section 428 of CRPC will be dealing with the execution of punishment laid down in Section 376-E of the IPC. The bench provided that the term imprisonment for life in Section 376-E in CRPC is same as imprisonment for the remainder of one's natural life. Thus, the bench found no issue regarding the execution of Section 376-E and didn't find said section to be violative of Article 21 of the Constitution.

The bench clarified that the offence of rape can be considered to be graver than the of murder.

The bench said the following:
There is no violation of Article 21 of the Indian Constitution, as there is a machinery for implementation and execution of the sentence of imprisonment for life, which means till the remainder of one's life, under Section 376-E. The effects of rape are not only physical but also mentally. Her right to live with dignity is infringed, which is constitutionally guaranteed to her under Article 21 of the Indian Constitution.

Thus, it concluded that the punishment under this section is not disproportional. Rape is one of the most heinous offences and it is very difficult to control the offence without creating deterrence. Section 376-E does not violate Article 14 and 21. By upholding the constitutional validity of Section 376-E of Indian Penal Code, the Bombay High Court ensured that said aim is achieved and rape convicts don't think again of committing this heinous crime.


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