The amendment to the Indian Penal Code (IPC) that came after the earth-shattering Nirbhaya incident has left the courts with no choice, but to award death sentence to the second-time rape offenders. The move has made the punishment 'mandatory' in an offence that is non-homicidal (no death caused), argued the three convicts of Shakti Mills rape case, who are serving a 'maximum punishment of death' quantum. The convicts — Vijay Jadhav, Kasim Bengali and Salim Ansari — challenged the Constitutional validity of Section 376 (E). The trio has claimed that they could not be treated as repeat offenders because they were not convicted before being charged with the amended Section. Arguing for them Dr Yug Mohit Chaudhary said, "The amended Section 376 (E) has introduced the concept of a mandatory death sentence. It leaves no choice and takes away discretion." If a person is convicted under Section 376 (a) or (b) and sentenced to life imprisonment, then — by way of introduction of the amended Section for the second offence — the judge is left with no choice but to award him death punishment, he said. Chaudhary, who is against harsher punishment, said, "Punishment for second rape is harsher and arbitrary than punishment for murder. In the case of murder, the person is dead. But, in a case of rape, the victim is not dead and by imposing the harshest punishment the incentive to the accused of a lesser punishment is being taken away. Therefore, it leaves no choice but to take the extreme step of killing." Chaudhary, however, added that "I am not undermining rape, but it is a lesser bodily offence than murder." Comparing the sentences under Section 302 (murder) and Section 376 (E) of Indian Penal Code, he said, "The amendment has taken away the powers of the Governor or the President to grant remission or commutation of sentence under Section 376 (E). However, the authority can commute the death sentence to life imprisonment or even up to a minimum of five years... The death sentence for the non-homicidal offence is extreme, unjust and high-handed," he said. Opposing the petition, the central government has filed an affidavit in the Bombay High Court. The petition read, "Rape is a heinous offence which causes extreme physical and mental trauma to the survivor. A repeat offence/conviction of rape in itself is a rare case, reflecting extreme depravity and lack of remorse on the part of the rapist. Thus, the punishment of life imprisonment is justified." Defending its validity, the petition states: "As the offence of rape has been categorised under various situations, as laid down under Section 376, 376A, 376D, a person may commit rape for a second time but the circumstance may differ. It is not necessary that the offender is convicted of rape under the same Section. As the offence encompasses different situations, a separate section, which is 376 (E), is absolutely necessary to punish the offender." Power Cut The amendment has taken away the powers of the Governor or the President to grant remission or commutation of sentence under Section 376 (E), says Dr Yug Mohit Chaudhary

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