Aparajita Bill is a virtual non-starter: Asok Kumar Ganguly

The former Supreme Court judge explains why the recent rape and murder of the medic in Kolkata cannot come under this Bill.

Former Supreme Court Justice Asok Kumar Ganguly says that the Aparajita Bill, which makes the death penalty mandatory for the offence of rape, might not see the light of day since a mandatory death penalty provision has already been declared ultra vires the Constitution by the Supreme Court. | Photo Credit: Jayanta Shaw

On September 2, the West Bengal government passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, apparently in response to the gruesome rape and murder of a young doctor in Kolkata’s R.G. Kar Medical College and Hospital. Since then, the Aparajita Bill has been universally panned as regressive, unconstitutional, and anti-feminist, with activists calling it nothing more than a desperate attempt by the Mamata Banerjee-led Trinamool Congress government to quell the rising public anger against it. It has also attracted criticism for several aspects such as mandatory death sentence, reducing the time frame for investigation and trial, and enhanced punishments under several sections of the existing laws such as the Bharatiya Nyaya Sanhita; the Bharatiya Nagarik Suraksha Sanhita; and the POCSO Act.

In an exclusive interview with Frontline, retired Supreme Court Justice and eminent jurist Asok Kumar Ganguly pointed out that the “mandatory death sentence” had already been outlawed via a 1983 Supreme Court judgment, and when the entire world is moving towards abolition of the death penalty, making it mandatory marks the Bill as regressive. He also spoke about how harsher laws do not impact the rate of crime, the societal changes needed to prevent rape, and more. Excerpts:

Do you believe that the new Bill is a well-thought-out piece of legislation that can actually deter future crimes against women? Or do you think this is, as many say, a knee-jerk response to public outrage?

I think the Aparajita Bill is a political gimmick to divert attention from the huge unrest over the rape and murder of a young doctor within the premises of a State hospital. The Chief Minister of West Bengal has sought this device because I think—and this is the thinking of many criminologists and socialists—that harsher laws do not reduce the rate of crime. This is proven worldwide and today 135 countries are abolitionists: in these countries there is no death penalty for any crime. In India, the death penalty has been upheld by the Supreme Court in the Bachan Singh case. But in the Bachan Singh case, the court made several guidelines that make it very difficult to impose the death penalty. I want you to consider the international thinking of mandatory death penalty to read this.

WATCH:

Justice Ganguly said that the Aparajita Bill was a political gimmick to divert attention from the huge unrest over the recent rape and murder of a young doctor within the premises of Kolkata’s R.G. Kar Hospital. | Video Credit: Interview by Suhrid Sankar Chattopadhyay; Camera by Jayanta Shaw; Editing by Samson Ronald K., Produced by Jinoy Jose P.

Shall I read it out loud?

Yes.

The international legal position on mandatory death sentences: the UN Office of the High Commissioner on Human Rights has stated that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life in violation of Article 6, paragraph one of the International Covenant on Civil and Political Rights. In circumstances where the death penalty is imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence: in resolution 2559 adopted on April 20, 2005, the UN Commission on Human Rights urged all the states that still maintain the death penalty to ensure that the death penalty is not imposed as a mandatory sentence.

Our Supreme Court has taken the same view.

So given that the Aparajita Bill has been framed as a part of the Concurrent List, it cannot be in conflict with any Central legislation, let alone the Constitution. And since you say that it is in violation of the Indian Constitution, there does not seem to be any chance of it seeing the light of day. Would I be correct in assuming that?

It should be because a mandatory death penalty provision has already been declared ultra vires the Constitution by the Supreme Court. That is also the international position, which has been accepted by our Supreme Court. Since it is accepted by Supreme Court, you will repeat this same mistake.

Now many people, particularly women activists, social activists, legal activists, and lawyers, are almost unanimous in saying that this is essentially a very regressive law.

Yes, it is. Because the world is moving towards an abolition of death penalty. If you introduce the death penalty for new offences, I mean where you make death penalty mandatory, you cannot cut down the number of offences. In order to prevent rape, you must improve your standard of education. You must give more independence to women. There must be better empowerment for women. Education in West Bengal has struck rock bottom, it is the worst since independence. The government is steeped in corruption in every field, even in this case of rape and murder. I call it a state-sponsored murder. The state has a hand in protecting them by destroying evidence.

Are you satisfied with the way the case is progressing in the Supreme Court?

I was part of the Supreme Court at one point of time. I am very, very mentally disturbed and unhappy with great respect to the Supreme Court, because the way the court has considered the protests by the junior doctors and asked them to go back to work, giving up their protests, and at the same time, giving the State a chance to use their powers. If the doctors do not resume duties, it shows that the Supreme Court somehow or other is protecting the corrupt party.

What do you recommend should be done right now?

The Supreme Court should not have interfered with the ongoing strike. They are raising a strike on a very legitimate ground. This is a democratic country. They have not resorted to violence. They are going on a very peaceful strike. I am amazed at why the Supreme Court has got into this.

There is also the fact of hurrying. There is also this claim by the State government that by this Bill, they are ensuring speedier justice by reducing the investigation time to just 21 days and the time for the judiciary to 30 days. Is this realistic? Is this viable?

No, certainly not realistic. Complete an investigation in 21 days is very, very difficult. In that case, the police will do a very bad job.

What do you think is going to be the fallout of all this?

Citizens take up the fight against this huge corruption, maladministration, which the people have taken up.

And do you think anything can come out of this Bill?

A virtually non-starter Bill will not create any impact. And in any event, the present crime can’t come under this Bill. The crime has been committed prior to the Bill being tabled.

And we have seen that its passing in the State’s Legislative Assembly has not really quelled the protest either.

That may be their strategy. I don’t know. They (the Opposition) are also afraid that if they oppose the Bill they will be painted as promoting rape. They are afraid of that backlash.