Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law.