Can Rapists Be Sent to the Gallows? Breaking Down IPC Section 376E

A Mumbai court’s award of death penalty to three rapists in the Shakti Mills case had sparked a legal debate.

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(This article was first published on 5 April 2018, and has been reposted from The Quint’s archives in view of the Bombay HC hearing Shakti Mills gang rape convicts’ petitions challenging their death sentences.)

A Mumbai court’s award of death sentence to three rapists in the Shakti Mills gang rape case has sparked a legal debate around the constitutionality of Section 376E. The section, added after the Nirbhaya case of 2012, mandates death sentence as punishment for repeat offenders of rape.

However, the first three accused to be convicted under this section have challenged it in the Bombay High Court. Their case, which has divided legal world, has three aspects: What counts as ‘rarest of rare’? What counts as a ‘repeat offense’ and a larger question India remains divided on: should the death penalty exist at all?

What is the Shakti Mills Case?

On 22 August 2013, a 22-year-old photojournalist was gang-raped in the abandoned Shakti Mills compound. While her case was on trial, another 18-year-old woman came forward, claiming that she was gang-raped by the same men a month prior to the second rape.

The sessions court heard the two cases together, and convicted and sentenced the accused to life imprisonment for raping the telephone operator.

Soon after, the court convicted the three men for raping the photojournalist as well, but between the conviction and the sentencing – a two week period – the prosecution was allowed to file an additional charge under Section 376E (a provision on rape added to the IPC by the Criminal Law (Amendment) Act 2013) against the accused. The court allowed this addition, despite the defence’s protest, and eventually handed out the death penalty against the three ‘repeat offenders’ on 4 April 2014.

Vijay Jadhav (19), Kasim Bengali (21), and Salim Ansari (28) are the first to be sentenced to death for rape not involving the death of the victim. A fourth convict in the Shakti Mills case, Siraj Khan, has been sentenced to life in jail and a minor accused is being tried separately.

The three have since filed an appeal in the Bombay High Court, challenging the constitutional validity of Section 376E itself: the death penalty is awarded only in the ‘rarest of rare’ cases, when the victim dies or is reduced to a vegetative state because of the act of rape.

They are alleging that handing the death penalty to them is against their Right to Life, since the victim did not die. Besides, the accused are also arguing that there is no ‘previous conviction’, as required for the ‘enhanced punishment’ under the new law. They are essentially asking that Section 376E be read to affect offences committed after a rape conviction and the serving of the sentence, and not when there are two convictions for rapes tried simultaneously.

Those Who Support the Death Sentence

Those who are for this judgement and regard the sessions court’s decision as ‘landmark’ argue that this will prevent potential rapists from repeating their crimes after they have been let out of jail. Since the three accused – Jadhav, Bengali, Ansari – had already been sentenced to life for raping the telephone operator, once convicted for raping the photojournalist, Section 376E applies and automatically increases the quantum of punishment to death.

Those who support the sentence argue that the accused are beyond the scope of reformation within the criminal justice system and should be made an example of to deter any similar instances in the future.

Women’s Rights Activist Pratibha Naitthani applauded the “strong verdict” when it was handed to the accused, saying that “it would prevent men from getting away easily with rape.”

National Women's Commission member Nirmala Samant Prabhavalkar also said, in April 2014, that “It [was] a sentence the convicts deserved, is permitted by law and one which will act as a deterrent for future like-minded offenders. Capital punishment was brought in to deter habitual offenders for such heinous crimes.”

Are they ‘Repeat Offenders’?

The investigators and the prosecution in the Shakti Mills case argued that since it was discovered that the accused had previously assaulted and/or raped at least 10 other women in the same compound, they fit into the the category of 'serial offenders'.

It was also discovered that the three convicts, along with their friends, had a set modus operandi for such assaults on women wherein they would spot a “shikar” (prey), pretend to be cops with couples and gang-rape women, often threatening them with physical violence and by clicking pictures of the victims after the act.

Emboldened by getting away with their heinous acts, the accused continued their criminal proclivities, which is why they are rightfully ‘repeat offenders’, argues prosecutor Ujjwal Nikam. The repetition of the crime by the accused can be interpreted as defying the law itself, and had they not been caught, were likely to do it again.

Principal Sessions judge Shalini Phansalkar Joshi observed that the objective of the law was to send out a “strong signal” to society that such offences must not recur. Opining on the argument that since the convicts had not previously been convicted of raping the telephone operator before the photojournalist (but, convicted in both simultaneously), the new law did not apply, she said:

The Legislature wants to ensure that such tendency is crushed and therefore this court accepts the prosecution’s case. Previous conviction may be a few minutes old, or a day or a few years. Had the intention of the Legislature been to specify the time (days, a year or decade), it would have said so. The Legislature has wisely used the words ‘previous conviction’. The general definition of ‘repeat offender’ provided in the dictionary cannot hold for 376E. If the intent of the Legislature was that repeat offence meant an offence committed two, three [or] four times, the Legislature would have said so.

Is it a ‘Rarest of Rare’ Case?

As far as ‘rarest of rare’ goes, Sessions Court Judge Shalini Joshi, while announcing the sentence, had highlighted that “both natural and unnatural offences were inflicted on the woman. It reflects the level of depravity of the accused. In no way can this crime not be considered brutal.”

The photojournalist was raped six times by five men while tied and a broken bottle held over her head to prevent her for screaming, forced to watch pornography and then clean up the crime scene after they were done.

"The offences reveal the extent of the depravity of the accused. This court in all its authority has to listen to the cries of the victim and the society at large. A proper signal has to be sent out to society. Other accused that have such tendencies would be deterred,” the judge said.

Taking on the ‘but the victim didn’t die’ argument, prosecutor Ujjwal Nikam argued that it can not be the only factor to determine whether a case is gruesome. “The survivor is still suffering from post-traumatic stress disorder. Chances for reformation cannot be given to demons in human form,” said Nikam.

Former judicial magistrate, Umeshchandra Yadav-Patil, said, while speaking to The New York Times, that the new amendment actually created the legal grounds for the prosecution to prove whether the Mumbai gang rape qualifies as one of the “rarest of rare” cases. The question, then, isn’t whether the two gang rapes are exceptionally heinous crimes or not, but whether the act of repeating gang rapes can be proved as an exceptionally heinous crime.

In this matter, the intention of the new legislation, which is to deter potential criminals, has to be taken into account. The court has to also see that public conscience is not defeated.

Umeshchandra Yadav-Patil, Former judicial magistrate

Those Who Don’t Support the Death Sentence

Those who are against the judgment argue that only after a rapist is convicted in one offence, spend 7-10 years in jail (for rape) or 20 years (for gang rape) and then comes out and rapes again, can he be called a “repeat offender” under Section 376E and get the death penalty.

Therefore, the new section was wrongly applied since both the crimes were committed in the same year, within a month of each other. Those against the judgement feel that the convicts should have been given life sentence for both gang rapes under Section 376D instead.

Here, the larger moral debate about the death penalty also comes into play with people questioning whether sending these men to the gallows under Section 376E does anything to change the larger culture of rape in the country, and whether or not they should be given a chance at reformation and rehabilitation.

Are They ‘Repeat Offenders’?

When the appeal of the convicts against the death sentence reached the High Court, Justices NH Patol and Abhay Thipsay asked, “What is the purpose of having both the trials [of the two gang rapes] together,” stating that it would make for a stronger case for Section 376E to be applied if the first conviction and sentence came previous to the second one.

However, what is to be noted here is that under Section 219 and Section 223 of the Criminal Procedure Court, accused can be tried during the course of one trial if the same offence is committed within a space of 12 months by the same accused.

When the sessions court sentenced convicts, several high profile lawyers spoke out against the verdict in the press. Prominently, veteran women’s lawyer Flavia Agnes, said speaking to The Times of India, that the death penalty would not serve as a deterrent in this case.

Section 376E was added for those offenders who are beyond redemption, who commit the same offence after a conviction. But the wordings “previous” and “subsequent” were interpreted to mean it could be applied even when trials proceeded parallelly, and the convictions were just a few minutes apart.

Flavia Agnes, veteran women’s lawyer

Criminal law experts have read the new amendment and concluded that simultaneous trials are not contemplated within the scope of Section 376E, and do not meet the requirement of a fair procedure under Article 21 of the Constitution, ie Right to Life. They insist that the first sentence ought to be served out before the second conviction, subsequent to which the Section 376E can be applicable.

Besides, if the purpose of the new law is to serve as a deterrent for ‘serial offenders’ or ‘repeat offenders’, then this judgement will do little to change the rates of rapes in India, since the sexual crime is not localised; it’s a mindset. Objectively, there is no such thing as finding the rapists, killing them and waking up to find rapes have stopped happening.

Lakshmi Lingam, who works at the Tata Institute of Social Scienes, said to The Hindu that a death penalty will do little to bring change, unless attitudes towards women and sexuality change.

Bringing out the argument that if the punishment for rape was to become the same as murder, Lingam argued that then “rapes will take more brutal forms and murders will increase. Rapists will try to kill the woman to snuff out her voice, thereby snuffing out evidence.”

Is it a ‘Rarest of Rare Case’?

The defence has also argued that since the photojournalist did not die, neither was she “robbed” or “hurt” with visible physical injuries, the case cannot be counted as a ‘rarest of rare’ case, a term usually saved for gruesome physical violence leading to the death of the victim, such as the Nirbhaya case.

Flavia Agnes agreed on this count too: “Rape is not murder and a woman who is raped is not a zinda laash [living corpse]. Even committed by the accused more than once, rape cannot be termed as “rarest of rare” offence. Death penalty is not a sign of a civilised society.”

However, the Sessions Court Judge Phansalkar-Joshi noted that the convicts did not do anyone a favour by ‘not robbing or hurting her externally’ or even letting her live, emphasising that the gang rape was premeditated and not a spontaneous act of lust.

“The gang rape accused were not only enjoying the act of sexual assault, but also the survivor's helplessness. It was executed in the most gruesome manner with no mercy or show of human dignity to the survivor.” said Phansalkar-Joshi.

The High Court is currently hearing the convicts’ pleas and the Union Government has been asked to explain before the bench the exact reading of Section 376E they had in mind when they framed it.

Which side the dice turns is a matter of time and much debate, however, it can be said with certitude that post the Nirbhaya case and now the Shakti Mills case, death penalty has become central to the conversation around reducing rampant sexual crimes against women in India.