MUMBAI: Should a repeat rape offender be sentenced to death? Three convicts in the Shakti Mills gangrape case, facing the death penalty , have approached the Bombay high court to challenge the constitutional validity of the stringent provision introduced in the rape law after the Nirbhaya incident. IPC's section 376E, enacted in 2013, says a repeat rape offender should be imprisoned for the rest of his life or sentenced to death.The petitions were filed by Vijay Jadhav, Mohd Kasim Bengali and Mohd Salim Ansari, who were sentenced to death by a sessions court in April 2014 for raping a photojournalist at Shakti Mills on August 22, 2013. The death sentence was because they were also convicted for the gangrape of another girl in July 2013.Advocate Yug Chaudhry, counsel for the accused, contended that the punishment prescribed under section 376 E was "arbitrary" and unconstitutional. “The minimum sentence for a repeat rape offender is much harsher than that for murder,” he told a division bench of Justices Bhushan Dharmadhikari and Revati Dere on Thursday. A person convicted for murder can be sentenced to life or with death in the rarest of rare cases. A convict sentenced to life can apply for remission and is also eligible for premature release from prison after he completes 14 years’ imprisonment. But, under section 376E, the minimum punishment is imprisonment till death. “To punish a non-homicidal offence with a punishment harsher than a homicidal crime does not make sense and is… without application of mind,” Chaudhry said.He claimed the provision also takes away the powers of the President and governor for premature release or remission. He cited US supreme court judgments in three cases, where state laws with death penalty for rapists were struck down. The US court had termed the punishment as savage.“This (section 376E) is a savage sentence. Can an offence invite the death sentence where life has not been taken?” said Chaudhry. He referred to the Law Commission’s report that had recommended that death penalty should be given only in terror cases. “In such repeat offences, the court will be left with only one option and that is to mandatorily give the death sentence,” said the advocate, pointing out that mandatory death sentence under IPC section 303 was struck down by the Supreme Court in 1983.The Shakti Mills case arguments will continue on Friday.

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