- Recently, a petition has been filed in the Supreme Court by a 29-year-old man serving life sentence for the gang rape of a nine-year-old girl in Maharashtra.
- The Supreme Court will examine the validity of a law that gives either life imprisonment or death sentence to a person convicted of gang rape of a child under the age of 12 without giving him an opportunity to atone for the crime or make amends.
Issues highlighted in the petition:
Restricting Judge’s Choices:
- It argued that Section 376DB of the Indian Penal Code (gang rape of a child below 12 years of age) limited the options available to trial judges to either punishment for the remainder of the person’s life or the death penalty.
- However, a minimum, compulsory punishment has been provided under the provision of life imprisonment.
Discrepancy prevailing in the year 2018 amendment:
- The petitioner further argued that there is an anomaly in the penal system created through the criminal amendments made in August 2018.
- Section 376DB was introduced in the year 2018 when the penal code was amended to provide for harsher punishment for the offense of rape.
- Whereas in Section 376-AB, a person convicted of raping a girl below the age of 12 years had a provision of imprisonment of not less than 20 years.
- Whereas Section 376-DB provides for a mandatory minimum sentence of life imprisonment for every person involved in the gang-rape of a girl below the age of 12 years.
- Both the sections provide for the death penalty as the maximum punishment.
- This life imprisonment without remission can mean 60-70 years in jail for a person who is less than 20 years of age.
Violation of Right to Life:
- Section 376DB did not give any option to the lower court except the higher punishment of life imprisonment or death sentence.
- The petition argued that Section 376DB violates Article 21 (right to life) and Article 14 (right to equality) of the Constitution.
- Given the global context of the issue, the European Court of Human Rights in Winter v. United Kingdom ruled that life imprisonment without a real possibility of parole was a violation of Article 3 of the European Convention on Human Rights.
- It was held that life imprisonment could not be treated as punishment only because they did not provide any opportunity of atonement to the prisoner and such sentences were inconsistent with respect for human dignity.
- The United States Supreme Court held that the inconsistent sentence in extreme cases violated the Eighth Amendment, which prohibits cruel and unusual punishment to the US Constitution.
Approach of the Supreme Court:
- The Supreme Court has already quashed the compulsory death penalty as unconstitutional and therefore called for consideration of this question.
- Further, it asked the petitioner along with an Additional Solicitor General to make written submissions and proposals on the issue.
- In 1983, in Mithu v. Punjab, the Supreme Court ruled that Section 303 of the IPC was unconstitutional to the extent that a person who committed murder while serving a sentence of life imprisonment in any other case would be given compulsory death sentence.
- Section 303 mandates that the Supreme Court should not impose any punishment other than the death penalty in such cases.