HC rules, Section 376 and 376-A IPC are Constitutionally valid, challenge dismissed [Read Order]

The Telangana High Court has recently dismissed a petition seeking to declare Section 376 and 376-A IPC as unconstitutional.

The petitioner has sought to declare Section 376, Section 376A and Section 376 AB IPC as unconstitutional for violative of Articles 14 and 21 of the Constitution of India as the laws doesn't award death penalty for the offence of rape on woman under the age of 16 years.

The petition reads in one segment:

"To direct the respondents to make the necessary amendments to the Indian Penal Code to include women under the age of 16 years in Section 376A and pass any other Order or Orders as this Hon’ble Court deems fit and proper in the circumstances of the case and in the interest of justice."

Learned Counsel for the petitioner submited that there is a grave loophole in the law, namely in Section 376, and 376A IPC.

For, while dealing with a case of a woman under sixteen years of age, who is a victim of rape, Section 376(3) IPC prescribes a punishment of imprisonment “with a term of not less than twenty years”, and “which may extend to life imprisonment”, which means imprisonment for the remainder of that person’s natural life. However, the said provision doesn't prescribe the capital punishment as one of the punishments. Moreover, according to Section 376A IPC, if the victim dies, or is reduced to a persistent vegetative state, the said provision does prescribe the capital punishment as one of the punishments, which may be imposed upon the alleged offender, if found guilty by the learned trial Court.

He further submitted that Section 376A IPC deals only with the circumstances covered by Sub-Section (1), and Sub-Section (2) of Section 376 IPC, but doesn't deal with the circumstances prescribed in Sub-Section (3) of Section 376 IPC. Therefore, in case, a victim were under sixteen years, and the victim were to die, or to be in persistent vegetative state, such a case cannot be brought within the ambit of Section 376A IPC. For, 376A IPC does not mention sub-section (3) of Section 376 IPC.

After listening to the contentions made, the Court observed that the PIL has raised an academic issue with regard to the loopholes left in the law and is not based on any factual matrix.

The Court pointed that academic issue cannot and should not be entertained by a Court of law.

It noted that the petitioner is free to raise the grievance either before the Central Government, or before the Parliament. But judicial forum is not a place for raising an academic issue with regard to any alleged weakness in law.

Further noting that the the petitioner hasn't submitted any representation to the Central Law Ministry brining to its notice the alleged weakness in the law, the Court ruled:

"The enactment of a law is a legislative policy decision. If the Parliament, in its wisdom, was of the opinion that different sets of provisions need to be enacted for dealing with different sets of circumstances, this Court isn't empowered to direct the Parliament to amend the law. For, the legislative policy decision cannot be interfered lightly by the Courts."

Court: Section 376 and 376-A IPC are Constitutionally valid

The Court was of the opinion that the petitioner's stand is higly misplaced in regard to the constitutionality of the particular Sections of IPC.

It stated that in case where a woman under the age of sixteen years, who may be subjected to rape, and dies during the course of rape, or due to rape, the offender would be charged both for offences under Section 376 IPC, and under Section 302 IPC.

It said:

"Section 302 IPC itself prescribes the Capital Punishment as one of the two punishments, which can be imposed upon an accused person. Therefore, the offender, who caused the death of a victim due to rape, can certainly be punished with capital punishment, if found guilty, by the learned Trial Court."

Thus the Court declared the position being taken by the learned counsel for the petitioner as clearly untenable and dismissed the petition stating it has no merit.

The order has been issued by a bench comprising of Chief Justice RAGHVENDRA SINGH CHAUHAN and Justice B. VIJAYSEN REDDY on 10-08-2020.

Read Order Here:

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