Section 376DA IPC Unconstitutional For Prescribing Mandatory Life Sentence For Remainder Of One's Life : P39A NLU-D Tells Supreme Court

The Supreme Court on Tuesday allowed Project 39A of National Law University Delhi to implead in a petition challenging the validity of Section 376DA of the Indian Penal Code for prescribing a mandatory life sentence without remission.

Advocate Mahfooz Hasan Nazki, appearing for Project 39A, bought to the notice of the court that another matter challenging Section 376DB of IPC was also under consideration before the Supreme Court, insofar as it provided sentencing court the power to grant death penalty. 

The matter was listed before Supreme Court bench comprising Chief Justice UU Lalit and Justice Bela M. Trivedi which agreed to hear both the petitions (the one challenging Section 376DA and the one challenging Section 376DB) together. The court also directed Union of India to file its reply in three weeks.

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..."

Section 376DB is a similar provision applied in cases where the offence of gang rape is committed on a girl under twelve years of age. In such cases, the sentencing court is granted the power to issue life sentence or even death penalty.

CJI Lalit stated-

"This petition questions inter alia the validity of 376DA of the IPC to the extent that it takes away the discretion of the presiding officer of the sentencing court and mandates imposition of imprisonment for life. Mr. Mahfooz Hasan Nazki, appearing on behalf of Project 39A, seeks to implead in the present matter. Impleadment application allowed. He further submits that the validity of Section 376DB of IPC where death penalty is one of the options open to the sentencing court is pending consideration before this court in another writ petition. List the instant petition along with the other before appropriate court. In the meantime, Union of India may file it's response within 3 weeks from today."

Mandatory life sentence without remission violates Article 21

In its application, Project 39A states : "The mandatory sentence of life imprisonment for the remainder of one's natural life prescribed by S. 376DA, IPC takes away a convict's hope of ever being released and reintegrated into society. Extinguishing this hope by way of a mandatory sentence strikes at the very core of an individual's right to life and liberty under Art.21 of the Constitution of India".

"The indefinite incarceration experienced by an individual sentenced under S. 376DA, IPC is no life at all. Such a condition denies an individual the ability to atone for their sins, grow beyond the circumstances of their crime, develop their personality, and realise their full potential", the application further states.

It points out that reformation as a penological objective recognises the inherent dignity of prisoners and acknowledges their capacity for change. "Reformation is a continuous process of self-reflection, personal development, and hope in the possibility of eventually being released. Only when such hope exists can an incarcerated person live with dignity and work towards atoning for his sins".

"The mandatory sentence is additionally degrading because it definitively and irreversibly presupposes that the convict lacks the capacity to reform and re-enter society. A sentence under S. 376DA does away with the statutory intent to impose punishments that are commensurate with the circumstances of the criminal. Rather, it marks the criminal as. irredeemable solely on the basis of their crime".

It is also pointed out that the individual role may vary in an offence of gang-rape and hence the prescription of life-sentence for the remainder of life is unreasonable as it takes away the judicial discretion.

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

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