Shakti Mills rape case: Four considerations that weighed with the Bombay High Court

The Bombay High Court, while commuting the death sentence of three convicts to life imprisonment in the 2013 Shakti Mills rape case, made pertinent observations on the role of constitutional courts and the interpretation of Section 376E of Indian Penal Code (IPC)..Here are three key observations made in the judgment delivered by the Bench of Justices Sadhana S Jadhav and Prithviraj K Chavan..Role of constitutional court and public outcry.The Bench stated at the outset that the present case had shocked the conscience of the society and there had been a public outcry in response to the same. However, the judges deemed it their duty to decide a case dispassionately.“In any case, a Constitutional Court cannot award punishment by taking into consideration only the public outcry… It is our bounden duty to consider the case dispassionately,” the judgment stated.It also added that while rape is a heinous offence, the damage done to the victim far outweighed the damage to the public conscience."A rape victim does not suffer just physical injury, but what is affected is her mental health and stability in life. Rape tantamounts to a serious blow to the supreme honour and dignity of woman. It is a violation of human rights," the Bench stated..Death penalty v. Due procedure established by law.The Court was also mindful of the fact that by setting aside the death penalty awarded to the convicts, it may appear to be playing “a counter majoritarian role.”It clarified that as a constitutional court, it was bound to take into consideration the judicial mandate, and not just consider the individual rights (of the victim and the accused), but also the “procedure established by law.”While reiterating the basic principle in sentencing of life imprisonment is the Rule and Death Penalty is an Exception, the Court said that it could not be oblivious to the fact that such incidents shook the conscience of the society.However, “that by itself does not entitle us to ignore the procedure established by law,” the Court held.The Court also cited the 262nd Report of the Law Commission, which after a due survey, observed that the death penalty does not serve the goal of deterrence any more than life imprisonment."At the same time, what is being tried before us is not the crime but the criminal who is imposed with a death penalty and the question before us is, as to whether as constitutional court it would be proper on our part to eliminate or extinguish the flame of life of the convicts without following ‘due procedure established by law’. The answer would have to be “emphatic NO”. We cannot allow our emotions to outweigh the principles of criminal jurisprudence and the procedural mandate of the Statute," the Bench held..Section 376E not a substantive offence.The Bench reversed the death sentence to rigorous life imprisonment while interpreting Section 376E of the Indian Penal Code. Section 376E provides for imposition of death penalty for rape on repeat offenders.It reads:"Whoever has been previously convicted of an offence punishable under section 376 or section 376A or 1 [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."The Court noted that the said provision was brought in as a mode to enhance the punishment meted out to a person who had been convicted for a similar crime more than once.It was observed that Section 376E is not a substantive offence, but a punishment contemplated for repeat offenders under Sections 376D, 376DA and 376DB of IPC.Interpreting the Section, the judgment stated, "But it would mean that the sentence of death penalty may be awarded in a case which is tried after the first conviction for a similar offence..."In light of this understanding, the Bench found that there was no alternative but to follow the procedure laid down by the statute as a judicial mandate..Difficulty in assimilating in society, conduct beyond reformation.Another question raised by the Court was whether the accused needs to be eliminated or made to suffer imprisonment for life till their natural life to make them realise the injury that is caused to the survivor. “Death puts an end to the whole concept of repentance, any sufferings and mental agony,” the Bench remarked in this context.The Sessions Court’s order failed to answer whether the imposition of an alternative sentence was foreclosed under Section 376D. The Bench noted that the statute did not prescribe mandatory death penalty."Although the offence is barbaric and heinous, it cannot be said at the threshold that the accused deserve only death penalty and nothing less than that," the Court stated.Having said that, the Court also observed that the “convicts in the present case do not deserve to assimilate with the society, as it would be difficult to survive in a society of such men who look upon women with derision, depravity, contempt and objects of desire.”The Bench cited the confession of the convicts to the victim that “she is not the first one to satisfy their lust” to conclude that such conduct proved that they were beyond reform or rehabilitation."The accused do not deserve any leniency, empathy or sympathy," the Court deduced.In light of this, the Court held that the convicts deserve punishment of rigorous imprisonment for life, which is for the whole of the remainder of their natural life in order to repent the offence committed by them.“Everyday the rising sun would remind them of the barbaric acts committed by them and the night would lay them with a heavy heart filled with guilt and remorse,” the verdict stated.The Court was thus convinced that a sentence of rigorous imprisonment for the remainder of their natural life without any remission, parole or furlough would meet the ends of justice..The Court passed the 108-page order in the reference plea filed by Maharashtra government for confirmation of death sentence against Vijay Jadhav, Mohammed Kasim Bengali, Mohammed Salim Ansari who had been tried for gang rape of the photo journalist in 2013.The convicts themselves had not challenged the conviction order of the Sessions Court. .[Read judgment]