New Delhi: On Tuesday, the West Bengal Assembly unanimously passed the state’s anti-rape bill. This comes in the aftermath of the rape and murder of a 31-year-old female postgraduate trainee doctor, whose body was discovered in the seminar room of the state-run RG Kar Medical College and Hospital.
The ‘Aparajita Woman and Child (West Bengal Criminal Laws and Amendment) Bill 2024’ seeks to punish persons convicted of rape with a death penalty if their actions result in the victim’s death or leave them in a “vegetative state”. It also seeks to impose a life sentence without parole on those convicted.
Experts argue that the bill does little to address root causes of sexual violence against women and label it as mere “tokenism”.
ThePrint breaks down the various provisions of the bill.
What the bill says
According to the bill’s statement of object and reasons, it aims to create a safer environment for women and children in the state by amending existing provisions and proposing new ones in relation to rape and sexual offences against children. It adds that such a bill “shall deter such deplorable acts and ensure that perpetrators face exemplary and severe consequences for their crimes”.
Section 2(e) of the bill specifies certain offences against women, which form the subject matter of this bill—rape, causing a woman’s death or a persistent vegetative state; gang rape; and sexual intercourse by a person in authority, among others. Moreover, Section 6 seeks to modify the punishment under Section 66 of the Bharatiya Nyaya Sanhita (BNS) which deals with “punishment for causing death or resulting in persistent vegetative state of a victim”. It does this by making the death penalty mandatory for the offence.
The bill also proposes inserting new chapters in the Bharatiya Nagarik Suraksha Sanhita (BNSS), that recently replaced the erstwhile Code of Criminal Procedure, for establishing special courts and an ‘Aparajita Task Force’ (ATF).
Special courts are those established for the “expeditious completion of inquiry or trial” of certain offences specified in Section 2(e). These will be presided over by a “person, not below the rank of a Sessions Judge or Additional Sessions Judge” in the state, with the concurrence of the Calcutta HC.
Meanwhile, the Task Force will be created by the government at the district level and presided over by a deputy superintendent of police for investigation of specified offenses. The investigation conducted by the task force shall be done by a female police officer “as far as possible”, it adds. Further, all government officers or anyone else whose assistance is sought orally or in writing shall, without “any delay”, assist the officers of the task force. Causing delay in assisting or intentionally omitting to give assistance can attract punishment up to 6 months, or a Rs 5,000 fine, or both.
The amendments the bill proposes
The bill seeks to amend key criminal laws such as the Protection of Children from Sexual Offences (POCSO) Act, 2012, the BNS and the BNSS in their application to the state of West Bengal.
Firstly, the bill makes punishment for rape more stringent by seeking to amend Section 64 of the BNS, which presently prescribes “rigorous imprisonment” for rape for a term not less than 10 years, but can extend to life imprisonment, along with a fine. It aims to replace this with “rigorous imprisonment for the remainder of that person’s natural life” and a fine, or with death.
Additionally, it attaches a proviso or condition to BNS’s Section 64, that says “any fine” under this provision will be “fair and reasonable” enough to meet the medical expenses and rehabilitation of the victim, as determined by a special court.
Similarly, Section 65 of the BNC, which punishes rape of minor women, below the ages of 16 and 12, with rigorous imprisonment of a minimum of 20 years to life imprisonment along with a possible fine, has been deleted altogether.
This could be due to the bill’s ‘Statement of Object and Reasons’, which says that “regardless of the age” of victims of rape and sexual offences, the state perceives the act to be “egregious”.
The bill proposes to modify Sections 66, 70, 71, 72, 73 and 124 of the BNS which prescribe the punishment(s) for causing death or a persistent vegetative state of a woman; gang rape; repeated offenders; disclosure of victim’s identity for certain offences; printing or publishing any matter relating to court proceedings without permission; and voluntarily causing grievous hurt by use of acid, among others.
It also aims to amend Section 193 of the BNSS, which relates to the police officers’ report once the investigation is complete.
“Every investigation under this Chapter shall be completed without unnecessary delay,” Section 193(1) states. However, for sexual offenses against children and women, this provision specifies the completion of the investigation within two months “from the date on which the information was recorded by the officer in charge of the police station”. The bill seeks to shorten this timeline of investigation from two months to 21 days, and allow for a 15-day-extension in cases where investigation cannot be completed within the prescribed period.
Speaking to ThePrint, Neetika Vishwanath, who heads Project 39A’s work on sentencing, said, “The 21-day-timeline prescribed for police investigation runs the risk of police resorting to short-cut methods, which can compromise the fair trial rights of the accused and lead to hasty investigations and, in turn, poor quality of evidence in rape cases.”
Besides prevailing central laws, some of the proposed amendments also mark a shift from the law laid down by the top court in landmark cases such as Bachan Singh vs. State of Punjab (1980), where a five-judge bench ruled that death sentence “is legislatively regarded as disproportionate and excessive” in most cases of murder and it is only in exceptional or “the rarest of rare” cases that it can be contended that death sentence is proportionate to the offense of murder.
Is this legislation the first-of-its-kind?
In the past, Andhra Pradesh and Maharashtra had introduced similar bills called the AP Disha Bill, 2019, and the Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020, respectively.
Both aimed to impose death penalty for heinous offences of rape and gangrape, among others. They also sought to introduce shorter timelines for investigation. The Disha Bill, too, was introduced in the aftermath of the rape and murder of a Hyderabad-based veterinary doctor. Similar to the West Bengal Bill, it included provisions for setting up special courts to deal with cases against women and children.
However, both bills still await presidential approval. This is because under Article 254 of the Constitution, if a state law on a subject that falls in the concurrent list is in conflict with the central law, then the President’s approval is needed for it to be made effective.
Criminal law is part of the concurrent list, on which both states and the Centre can legislate.
According to the legislative procedure, such a criminal law, once passed by the state assembly, will be sent to the Governor, who will then forward it to the President for approval. However, given the constant face-off between the West Bengal government and the Centre, it remains to be seen whether this bill will receive smooth presidential approval or encounter political challenges.
What experts think
Speaking to ThePrint, Swagata Raha, who heads the research team at the Enfold Proactive Health Trust, Bengaluru, said, “A solution like this does not address the root causes of sexual violence against women or the implementation challenges and is absolute tokenism. As per the National Crime Records Bureau’s (NCRB) Crime in India 2022 Report, in 88.2 percent POCSO cases, involving child victims of penetrative and aggravated penetrative sexual assault in West Bengal, the offenders were known persons. Would punishment of this kind encourage people to come forward and report the crime and testify, especially when the offender is their relative, sibling, or father?
Moreover, in a majority of the POCSO cases, children are already hesitant to report, Raha said while pointing out that punishment under the POCSO is already severe enough. “Is the witness protection scheme being used? Is compensation being ordered and reaching children? Do we have forensic labs that can process evidence efficiently and in time? Do we have dedicated special public prosecutors in all special courts? Do we have sufficient judges to be able to meet the timelines for recording evidence and completing trials? These are the questions that need to be asked. However, these systemic issues call for investment and accountability. Amendments like these don’t serve anyone, least of all the victims,” she said.
Meanwhile, Neetika Vishwanath said that the bill is a departure from the existing case laws on death penalty. “The bill introduces mandatory death penalty for rapes resulting in the victim’s death or vegetative state despite the Supreme Court declaring mandatory death penalty to be unconstitutional in Mithu vs. State of Punjab (1983). One of the main reasons behind the court’s decision was that such a penalty took away from the judges’ discretion to consider mitigating circumstances,” she said.
(Edited by Zinnia Ray Chaudhuri)
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