In this PIL the petitioner has sought the following reliefs before the Telangana High Court:
To declare Section 376 and Section 376A of the Indian Penal Code violative of article 14 and article 21 of the constitution of India, as it does not award death penalty for the offence of rape on a woman under the age of 16 years.
To declare Section 376 AB as violative of Articles 14 and 21 of the Constitution of India and consequently declare the same as unconstitutional as it does not include woman under the age of 16 years.
To declare that Section 376A of the Indian Penal Code as unconstitutional and violation of Articles 14 and 21 of the Constitution of India.
To direct the respondents to make the necessary amendments to the Indian Penal Code to include women under the age of 16 years under the ambit of Section 376A.
The learned counsel for the petitioner submits that there is a loophole in Section 376, and section 376A of the Indian Penal Code. In a case where a rape victim who is under sixteen years of age, Section 376(3) IPC prescribes a punishment of imprisonment in which the term of imprisonment should not be less than twenty years which may extend further to life imprisonment. This means that a person who has committed this grave offence can be imprisoned for the remaining of that person’s natural life. However, section 376(3) does not prescribe capital punishment as one of the punishments.
Furthermore, if the acts of the offender had led to the death of the victim or the victim is reduced to a persistent vegetative state then the trial court as per section 376A of Indian Penal Code as one of the punishments the offender can be sentenced with capital punishments.
According to the learned counsel, section 376A IPC deals only with the circumstances covered under section 376(1) and section 376(2) of IPC but does not deal with the circumstances prescribed in 376 (3) of IPC. Therefore, a victim who is under the age of sixteen years dies or goes in a persistent vegetative state, cannot be given justice under the ambit of Section 376A IPC.
Therefore, there exists a loophole in the law dealing with rape and the plight of the victim of such an offence.
The Hon'ble High Court held that the present PIL has raised an academic issue with regards to the loophole in the law and therefore it cannot be entertained by a court of law.
If the petitioner is aggrieved by any law, the right forum is to raise a grievance before the Central Government or before the Parliament and not before the judiciary.
The enactment of a law is a legislative policy decision. If the Parliament, in its wisdom, believed that different sets of provisions need to be enacted for dealing with different sets of circumstances, this Court is not empowered to direct the Parliament to amend the law.
As per the contentions of the petitioner, the offender cannot be sentenced to capital punishment under the Indian Penial Code if the victim is under the age of sixteen years, who was subjected to the heinous offence of rape, had either died during the course of rape or due to rape.
This contention of the petitioner is highly misplaced. In such cases, the offender would be charged under Section 376 IPC, as well as Section 302 IPC.
Therefore, the offender who is found guilty for causing the death of a victim due to rape can be punished with capital punishment.
For the reasons stated above, this Court does not find any merit in the Public Interest Litigation. Therefore, the writ petition is hereby dismissed.
Indian Express article: https://rb.gy/mvzzty
live law article: https://rb.gy/xdldyv
To read the judgement: https://rb.gy/nzovdm