The Bombay High Court in Mohd Salim Mohd. Kudus Ansari (Shakti Mills case) recently upheld the constitutional validity of s.376E of the IPC that allows for the death penalty as one of the punishments for the repeat offence of adult rape. This article analyses the constitutionality of the provision imposing the death penalty for non-homicidal offences on the grounds of disproportionality and arbitrariness, and problematizes the court’s refusal to rule on the notion of ‘subsequent conviction’ in the text of s.376E. In doing so, this article looks at approaches adopted by the Supreme Court of the United States (SCOTUS) on similar issues.
The interpretation of ‘subsequent conviction’:
An important ground on which the petitioners challenged the Constitutional validity was the arbitrariness of the term ‘subsequent conviction’, in the absence of appropriate procedure. s.376E provides for an enhanced punishment for ‘subsequent conviction’ for rape, which is vague and undefined. The argument of the petitioner centered around relying on the ‘offence model’ of repeat offenders, as reflected in s. 75, instead of the ‘conviction model’ as under s.376E. The offence model originates from the dissenting opinion in Deal v. U.S. that recidivist provisions apply to those who “failed to learn their lessons from the initial punishment” and committed a repeat offense.” In essence, the argument was that for s.376E to apply, there must be an initial conviction and punishment, which should then be subsequently followed by a repeat offence. This model was proposed in contrast to its use in the Shakti Mills case where the use of s.376E is being attempted when the prosecution for the two offences ran simultaneously. The petitioner’s claim, based on the scheme of CrPC as is evident from a reading of s.75, along with Form 32 in Schedule II, was that an enhanced sentence could be imposed only when an offence committed after the conviction is final.
The HC was none too eager to entertain the submissions of the petitioner and declined to examine this claim. The HC held that, this would be addressed before the bench which would rule on the merits of the appeal. To determine the question of constitutionality without going into the merits of such a fundamental argument is unwarranted. It is noteworthy that the unilateral consideration of conviction to the point of conducting two trials simultaneously to arrive at a finding of guilt in one and treat is as ‘previous conviction’ in the other, without regard to interval or evidence of reformation, is the hallmark of a harsh provision which sidesteps more difficult penological questions.
Proportionality and vagueness in sentencing:
The doctrine of proportionality states that a punishment should not be greatly disproportionate to the crime committed and is implicit in Arts. 14, 19 and 21. In his dissent in Bachan Singh v. State of Punjab, Bhagwati J. has extensively discussed the disproportionality of the death penalty, and on a detailed analysis of judgments from US in light of the 8th Amendment, opined that that the principle of proportionality flows directly as a necessary element from Articles 14, 19 and 21 of the Constitution. Precedents on proportionality reflect the power of the Court to limit the legislature from imposing disproportionate punishments. However, in India, the precedents on proportionality in death penalty sentencing are scarce and majorly guided by foreign judgments. The petitioner argued that death penalty was not a sentence commensurate to a crime that did not cause death and relied heavily on U.S. judgments such as Coker v. Georgia, Kennedy v. Louisiana, to support this. The SCOTUS, while applying this principle originating from the 8th Amendment, consistently holds that murder being irrevocable and causing loss of life, deserves a higher punishment than other crimes, including rape. As the degrees of severity of both these crimes is incomparable, proportionality dictates that the quantum of punishment ascribed to the two crimes ought to be different.
Justifying the proportionality of the death penalty for rape, the HC describes the psychological harm of sexual assault as “destructive of the whole personality of the victim” and survival in a society that “looks down upon her in derision and contempt.” The judgment also quotes Bodhisattwa’s case, which is centered around the questionable idea of ‘honour,’ without mentioning rehabilitation of victims, and is extremely problematic. By contrast, the amicus brief filed in Coker v. Georgia by Ruth Bader Ginsburg, presently a Judge of the SCOTUS, et. al., offered an interesting rebuttal without discounting the seriousness of rape as a crime. The amici argue the irreversibility of murder, stating that “Life is over for the victim of the murderer; for the rape victim… [life] is not over and normally is not beyond repair.” Using regressive viewpoints as the sole reason for deeming death penalty a proportionate punishment does disservice to the woman and her standing in society.
In India, the threshold for a sentence to be disproportionate is that it must be “so inhuman or brutal that it cannot be accepted by any standard of decency,” as laid down in Vikram Singh v. Union of India. The SC also recognised that in dealing with proportionality of sentences, capital cases fall under an entirely different category. However, the HC dismissed the challenge to constitutionality without any findings on the question of proportionality, ignoring both precedent and the right to fair and reasonable procedure under Art. 21. In U.S., the governing principle is outlined in Kennedy v. Louisiana, which holds that evolving standards of the society and the teachings of its precedents counsel the Court to be hesitant before allowing extension of the death penalty. Relying on a catena of judgments across jurisdictions in Vikram Singh, the SC considered capital punishment to be disproportionate in case of non-homicidal offences. Further, the Indian judiciary has been cautious while imposing the death penalty, and only one case of confirmation of the death penalty in a non-homicidal case, i.e., Mahendra Singh Gond v. State of M.P., involving child sexual abuse, is pending before the SC. There has been no case where the SC has imposed the death penalty, without any loss of life, which is reflective of the principle laid down in both Coker and Kennedy.
The Judgment Muddle:
The HC is flawed in ruling that “prescribing punishments is the function of the legislature and not the Courts,” contrary to the attitude in the U.S., referred in SC precedents, where sentences are often struck down for being disproportionate and excessive. This undue deference to legislative will is opposed to the principle of proportionality and the role of Courts in striking down excesses. There is no real justification in the HC judgment that allows us to understand the constitutional thresholds for deference more generally in constitutional adjudication or reasons for higher deference in legislative determinations of punishment.
Kennedy outlines another difficulty with imposing death penalty for non-homicide cases. Justice Kennedy observes that implementing the death penalty for non-homicidal offences, which has no foundational jurisprudence like capital murder, would require experimentation in an area where failure would result in the execution of individuals undeserving of death. India faces the same risk in expanding the death penalty to non-homicidal offences. At present, there exists no framework for the application of the ‘rarest of rare’ test, beyond murder. Recent developments have revealed an upheaval even in the application of this test to offences under s.302. The 262nd Law Commission Report recommended the abolition of death penalty for all crimes other than terrorism related offences and waging war. The SC has also been unwilling to expand the death penalty, particularly considering Justice Kurian Joseph’s dissent in Channu Lal Verma v. State of Chattisgarh calling for reconsideration of the death sentence, which has failed to achieve any constitutionally valid penological goals. The Bachan Singh guidelines to ensure that the death penalty is not “arbitrarily and freakishly imposed” also took a blow with the recent judgment in Shinde, where five death row prisoners were acquitted in reopening a review petition. The HC has charted the long, arduous history of the evolution of death penalty jurisprudence, which continues to be volatile in present times. However, it failed to consider the complexities of expanding death penalty to non-homicidal offences, in the absence of an established framework.
Given that the jurisprudence in India pertaining to death penalty sentencing in non-homicidal offences is limited, the Court was amiss in not considering the judgments relied upon by the petitioner. These judgments were merely sidestepped on the ground that US courts treat rape as a crime against individuals, unlike India, which treats it as a crime against society. The determination of constitutional validity upheld without taking into consideration fundamental tests like proportionality and by giving unnecessary deference to the legislature spells trouble for death penalty jurisprudence. The judgment validates the imposition of death penalty in areas that were hitherto accustomed to less severe sentences like life imprisonment, leaving no jurisprudence in its wake. The dangers of doing so are aplenty. While the perils of such sentencing have been consistently fended off by the SCOTUS by refusing to permit the death penalty to be applied in cases where no homicidal death has taken place, the HC judgement shies away from the difficult procedural and penological questions, exacerbating an already arbitrary and irreversible sentence.
(The authors are Associates at Project 39A, National Law University, Delhi)