Supreme Court Issues Notice On Plea Challenging Validity Of Section 376DA IPC For Prescribing Mandatory Life Sentence Without Remission

The Supreme Court on Monday issued notice in a plea challenging the validity of Section 376DA of the Indian Penal Code for prescribing a mandatory life sentence without remission. The matter was heard by bench comprising Chief Justice U.U. Lalit and Justice Ravindra Bhat.

Section 376DA prescribes the punishment for gangrape of a girl aged below 16 years. It reads as below:

"Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine..."

At the outset, the petitioner submitted that the provision in question, that is, Section 376DA of the IPC was unfair because it only provided a standardised punishment to all accused persons regardless of the role played by them in the offence. He stated that–

"This particular provision provides for a standardised punishment or sentence...The issue was dealt by the Constitution Bench of this court in Mithu v. State of Punjab and there, Section 303 was struck down..."

For context, Section 303 of IPC had made sentence for murder mandatory stating "whoever being under sentence of imprisonment for life, commits murder, shall be punished with death". Thus, Section 354(3), Cr. P. C. which made sentence of life imprisonment for murder as the rule and death penalty as an exception, became meaningless. Further, Section 235 (2), Cr. P. C. which laid down that the accused shall be heard on the question of sentence also became useless on application of Section 303. Thus, the Supreme Court in Mithu v. State of Punjab had stuck down Section 303.

In this context, the petitioner submitted that–

"Going by that issue set down by this court (Mithu v. State of Punjab), accused has an indefeasible right to be heard before the passing of the sentence."

He further submitted that in cases of mandatory life imprisonment for the remainder of a person's life, judicial discretion could not be taken away. 

CJI Lalit, while issuing notice in the matter orally remarked–

"It never occurred to me but you are certainly right there...that there is only one punishment which is prescribed, that is, increased imprisonment of life and that shall also be till the determination of his natural life, regardless of what exactly is the nature of involvement, participation. Issue notice returnable on 30th September 2022."

The court also directed the copy of the petition to be served upon the office of the Solicitor General.

 The matter will now be heard on 30th September 2022.

CASE TITLE: MAHENDRA VISHWANATH KAWCHALE Versus UNION OF INDIA W.P.(Crl.) No. 314/2022 PIL

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