Shakti Mills rape convicts in High Court: Govts' views on rape victims 'outdated'

The Union and the Maharashtra governments' views on rape victims are "outdated and violative of constitutional principles", the three death row convicts in the Shakti Mills gangrape case Tuesday told the Bombay High Court.

The argument was made by advocate Yug Chaudhry, the counsel representing Vijay Jadhav, Mohammad Kasim Bengali and Mohammad Salim Ansari, who were sentenced to death by a sessions court in April 2014 for raping a photojournalist in Shakti Mills on August 22, 2013.

The three have challenged the law under which they were awarded the death sentence by the sessions court in 2014.

Chaudhry was responding to a previous argument made by the government counsels, whereby, they had justified the provision under Section 376 (E) of the Indian Penal Code for death sentence for a repeat rape offender by saying that the rape was a graver offence than murder.

Additional Solicitor General Anil Singh and Advocate General Ashutosh Kumbhakoni, who represented the Union and the state in the case respectively, had told the bench previously 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".

"Such a view that considers dishonour graver than death is outdated and violative of the constitutional principles that guarantee every citizen a right to equality and a life of dignity," Chaudhry argued.

He argued that if the above was the rationale behind introducing Section 376 (E) -- the section challenged by convicts -- then the same must raise questions on the Constitutional validity of the section itself.

Chaudhry also questioned the Union government's submission that the amendment to the rape laws were made in the aftermath of the December 16 gang rape case in New Delhi when there was much anger among the public and hence, the need for more stringent rape laws was felt.

"Can the legislature let public perception and the public's will dictate the laws?" Chaudhry asked.

He was making the concluding arguments in the case.

Earlier, the Union and the state governments had concluded their arguments saying all provisions, including Section 376 (E), that were brought into effect through the Criminal Law Amendment Act of 2013 were in consonance with legal and Constitutional principles.

All parties in the case concluded their arguments on Tuesday.

A bench of Justices B P Dharamadhikari and Revati Mohite-Dere, which had been conducting the final hearing on the three writ petitions since last month, has now reserved its verdict on the pleas.

The verdict on these three pleas will have a direct bearing on the state's petition seeking confirmation of the death sentence awarded to the three men by the sessions court.

The confirmation plea is pending hearing before another bench of the high court.

The amended law has been challenged by the three convicts.

The sessions court awarded them the death penalty as they were also convicted for raping a telephone operator in July 2013.

The trials in both the cases were held simultaneously and the conviction was handed out the same day.

The sentences were awarded to the convicts within a period of two weeks from each other.

The sessions court first pronounced the punishment in the telephone operator case, sentencing the convicts to life imprisonment.

It subsequently allowed a prosecution plea to charge the convicts under Section 376 (E) and awarded the death penalty to three out of the five convicts in the case.
The three, however, challenged the death sentence and the constitutional validity of Section 376 (E).

Their counsel in HC, advocate Chaudhry, has argued that the first conviction ought to be secured before the second offence was committed for Section 376 (E) to be applicable in a case.

The amicus curiae (law officer appointed by court to assist it in a case), advocate Abad Ponda, too had told the HC while Section 376 (E) was constitutionally valid, in his opinion, an accused must be seen as a repeat offender and be awarded the death sentence only if the second offence was committed after he was convicted for the first offence of rape.