NEW DELHI: The Supreme Court on Tuesday declined a suggestion to defer hearing a petition challenging the constitutional validity of the punishment for gang rape of a girl below 12 years because a new law is being drafted, saying that courts have to settle the law as it exists.
“It may not be proper for this court to defer the matter just because a law is in the offing. Today, the new law does not exist and we do not know when it will come into force. We can adjourn the matter to enable your response, but we have to decide this matter,” said a bench of justices AS Oka and Pankaj Mithal.
The bench was responding to a statement by Attorney General (A-G) R Venkatramani who asked the court to defer hearing a matter where the constitutional validity of Section 376DB of the Indian Penal Code (IPC) is under challenge on the ground that it prescribes life sentence as the minimum punishment for a person convicted under the offence.
This provision, which relates to gang rape of a minor aged below 12 years, has been challenged by a man convicted for this offence who argued that it violates the fundamental right to life and liberty as it leaves no chance for consideration of remission for the convict based on good behaviour or possibility for reform.
Venkatramani told the court that a new penal code is pending before the parliamentary standing committee and one cannot say if the offence under question will be retained when the new bill is enacted. He told the court that a similar situation arose before the Chief Justice of India (CJI) earlier in the day when he sought deferment of petitions challenging the law of sedition under Section 124A of IPC.
The bench told the A-G that it would not make a difference even if the law was changed. “The new law even if it comes cannot have retrospective effect. This matter has to be heard anyway.”
To be sure, the Supreme Court first issued notice to the Centre in this case in August last year. At the time, the bench also asked the A-G to assist in the matter.
Also, Section 70 (2) of the Bharatiya Nyaya Sanhita, 2023 continues to prescribe jail term for the remainder of the convict’s natural life as the only punishment, other than death penalty, for gang rape of a minor. The proposed penal code prescribes this punishment for gang rape of all minors, below the age of 18. Currently, this penalty is prescribed if the victim is below age of 12 years.
A 30-year-old man in Maharashtra convicted under section 376DB has challenged the provision. In his petition, the convict, who argued through his counsel Gaurav Agarwal, said he didn’t intend to challenge his conviction but the minimum sentence cannot be so harsh.
Nikhil Shivaji Golait was sentenced to death in August 2020 by a Maharashtra court for the gang rape of a 9-year-old girl in Buldhana district on April 27, 2019. The Bombay high court commuted the sentence to life term on September 7, 2021.
The court posted the matter for hearing in the first week of October and asked the A-G to suggest if this provision will inhibit the power of constitutional courts to restrict life sentences to 20 or 30 years without remission.
In a 2016 constitution bench decision, the top court held that the constitutional courts have the power to award term sentences which restrict rights of a prisoner to avail remission for a fixed period of sentence which can be 20, 30 or 40 years, depending on the nature of crime.
Referring to this decision, the court asked the A-G, “This court has taken a view that life sentence can mean 20 or 30 years with no remission. Does this law suggest that the power of this court is taken away to sentence a person for anything less than remainder of life.”
Venkatramani told the court that if the court wishes to have a “hybrid” jurisdiction, varying of sentences may be possible. However, he refrained from making any clear statement on this issue. Even the Centre has not filed its response to the petition.
The petition pointed out that a person convicted of rape of a girl less than 12 years of age is awarded a minimum sentence of 20 years imprisonment. But where two persons are involved in the same crime, the penal code imposes a totally disproportionate punishment by forcing an accused to remain in jail for his entire lifetime. Further, it does not consider the fact that a person may be a first-time offender, has no past criminal antecedent and maintains good conduct in jail. This contradicts the underlying basis of punishment meant to be reformative in nature, the petition added.