The anti-rape Bill brought by the West Bengal government in the face of widespread protest over the gruesome rape and murder of a postgraduate trainee doctor inside Kolkata’s R.G. Kar Medical College and Hospital has come under the attack of legal experts and women activists.
The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, activists say, is regressive and essentially nothing more than a desperate attempt by the government to quell the rising public anger against it. The Bill, hurriedly framed and unanimously passed in the West Bengal Assembly on September 2, introduces several major amendments to existing laws—the Bharatiya Nyaya Sanhita (BNS), 2023; the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023; and the Protection of Children from Sexual Offences (POCSO) Act, 2012—including mandatory death sentence, reducing the time frame for investigation and trial, and enhanced punishments under several sections of the existing Acts. The Bill also talks about the establishment of special “Aparajita Task Forces” and special courts in the districts to deal with rape cases.
Mandatory death penalty if victim dies
The mandatory death penalty is arguably the most controversial aspect of the Bill. Legal experts say that it violates the Constitution. The eminent jurist and former judge of the Supreme Court Asok Kumar Ganguly pointed out that “mandatory death sentence” was outlawed in Mithu v. State of Punjab (1983).
“The death penalty cannot be imposed by the government; it is imposed by the judiciary, and here the judge is not given the option between death penalty and life sentence. This foreclosing of the option is discriminatory and violative of Articles 14 and 21.... Even if it is given presidential assent, the court will strike it down,” he told Frontline.
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According to Ganguly, when the entire world is moving towards abolition of the death penalty, making it mandatory marks the Bill as regressive. “The death penalty cannot bring down the number of rape cases. It was given after the Nirbhaya case, but did heinous crimes against women come down after that? No. In order to prevent rape, one must improve the standard of education, the social infrastructure, give women more independence, and greater empowerment.
“Respect for women can come about with better education—and education in West Bengal has hit rock bottom. The State government is steeped in corruption in every field. I call it [the R.G. Kar case] a state-sponsored crime. The State has a hand in protecting the perpetrators of the crime by destroying evidence,” Ganguly said.
Junior doctors protest against the rape and murder of a trainee doctor at the R.G. Kar Hospital, in Kolkata on September 13. | Photo Credit: SHYAMAL MAITRA/ ANI
The Aparajita Bill has also introduced the death sentence as an alternative to sentences prescribed in sections of the BNS and the POCSO Acts. According to Pratik Dhar, a senior advocate of the Calcutta High Court and a well-known constitutional expert, the Aparajita Bill “unnecessarily” focusses too much on the death penalty as a solution to the problem of rape. “When we talk about justice, we mean justice for everyone. This clamouring for hanging someone is counterproductive to the deliverance of justice,” Dhar told Frontline.
Aparajita Bill introduces enhanced punishment
The new Bill also introduces enhanced jail terms in a number of provisions in the existing laws—for example, rigorous life imprisonment for repeat offenders and perpetrators of acid attacks, and higher jail terms for disclosing the identity of a rape victim. Legal experts believe these amendments may be counterproductive.
Jhuma Sen, an advocate of the Calcutta High Court and an expert on gender violence laws, called the Bill a “knee-jerk reaction”. “When the punishment becomes higher, the conviction rate falls, as judicial scrutiny also increases. Thus, ultimately, the survivor suffers,” she told Frontline.
“The manner in which the Bill was framed, practically overnight, seemed patronising. It seems to be saying, ‘There, we have given you a law, we have fixed it.”Jhuma SenAdvocate of the Calcutta High Court
Sen, who took part in the deliberations of the Justice J.S. Verma Committee set up in 2012 after the Nirbhaya case, pointed out that the committee, “while recommending some very progressive reforms in criminal law, did not agree that the death penalty could be a deterrent to rape or other heinous crimes. While changes in rape law have historically been made in response to certain major events, like the Mathura case in 1972, where a tribal woman was raped in police custody, or the major changes of 2013 after the Nirbhaya gang rape and murder, there was no necessity for a new Bill, as we have enough laws. It is the proper implementation of the laws that is required.”
Time frame too short for investigation and trial
Another controversial and, in the words of legal experts, “impractical” aspect of the Bill is the reduction in the time frame for investigation and trial. Amending Sections 193 and 346 of the BNSS, the Bill states that investigation of the crime must be completed within 21 days from the date when the information is recorded by the police (as against 2 months in the BNSS), and the investigation can be extended by 15 days; the trial must be completed within 30 days from the date of filing of the charge sheet (against the earlier deadline of 2 months).
The State government has claimed that its aim is to “expedite investigations and ensure swift justice for victims”. However, lawyers pointed out that simply reducing the time frame does not make the procedure justice-oriented.
Dhar put it in perspective, saying that criminal law is essentially based on the concept of “reasonable doubt” and depends on the collection of evidence, and it is pernicious to the entire system of justice and investigation if the processes are rushed.
“Theoretically, you can reduce the time frame, but you are destroying the ultimate object because you are not changing the basic principle of proving beyond reasonable doubt. If you try to reduce the time frame, the accused will be able to find more flaws in the evidence. This will be beneficial for the accused. Also, the idea of ‘beyond reasonable doubt’ is to ensure that an innocent person is not punished. It is an acknowledgment that human beings can make mistakes. I doubt that the persons who have drafted this Bill have even read the existing laws properly,” said Dhar.
Pankaj Dutta, former Inspector General of Police, also agreed that the scientific process of investigation cannot be rushed. “The Nirbhaya tragedy occurred in 2012, and the execution was in 2020. The process takes time. In the R.G. Kar case, which occurred on August 9, the CBI will give its second status report on September 17. Such an investigation process cannot be hurried. This Bill is ultimately self-defeating,” Pankaj Dutta said.
Highlights
- The West Bengal government’s anti-rape Bill is being criticised for being regressive and a copy-paste of Andhra Pradesh’s Disha Bill, brought after a similar case in that State.
- Legal experts say the mandatory death penalty prescribed in the Bill is against the Constitution and takes away the judge’s discretion in deciding the quantum of the sentence.
- Women’s rights activists criticise the Bill for considering women helpless like children, and says it uses the language of protectionism which is not the language of autonomy.
Anti-feminist legislation
While Chief Minister Mamata Banerjee has called it a historic Bill aimed at providing a “safer environment for women and children” in West Bengal, women’s rights activists and lawyers call it anti-feminist. “Clubbing a woman and a child together suggests that a woman, like a child, is helpless and needs to be protected. The BNS is the original sinner as it is there that women and children are bracketed together. The language of protection is not the language of autonomy,” Sen said.
Sen said the manner in which the Bill was framed, practically overnight, seemed “patronising”. “It seems to be saying, ‘there, we have given you a law, we have fixed it for you.’ At the least they could done a gender audit,” she added.
Community-based organisations distribute food to the junior doctors protesting for justice for the postgraduate trainee doctor who was raped and killed at RG Kar Hospital, in Kolkata, on September 13, 2024. | Photo Credit: SHYAMAL MAITRA/ ANI
According to the writer and women’s rights activist Sarmistha Dutta Gupta, there are many aspects of the Bill that women do not agree with. “For starters, giving the Bill a poetic name like ‘Aparajita’ seems like romanticising it.... Also, the word ‘survivor’ does not appear even once in the Bill. It only refers to the ‘victim’. The implication is that the woman cannot be a survivor. [But] we know so many survivors who have fought back and are living their lives,” Dutta Gupta told Frontline.
Referring to the last line of the Bill, which says “There is no financial implication involved in giving effect to the provisions of the Bill”, she said: “If the government has no intention of providing greater financial support towards building infrastructure and manpower, then this Bill is nothing but a knee-jerk reaction to the public protests.”
In fact, Dutta Gupta and some leading feminist activists, social workers, mental health activists, writers, advocates, and teachers, have written to Mamata Banerjee listing all the issues they believe are wrong in the Bill. “The provisions are poorly drafted and hurriedly passed, with no vision, critical thinking, or political will supporting it. We are compelled to ask, did we need this Bill at all?” the letter said.
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Legal experts and activists are unanimous in the opinion that there was no need for any new legislation; what is needed is the proper implementation of existing laws. The women’s rights activist Nisha Biswas pointed out that the Aparajita Bill was a “copy-paste” of the Disha Bill, 2019, from Andhra Pradesh, and the Maharashtra Shakti Bill, 2020—both of which await the President’s assent. This Bill is likely to meet the same fate.
According to Biswas, what is urgently needed are improvements in public infrastructure and creating public consciousness against rape. “In the 2013 Kamduni gang rape and murder case, the public prosecutor was changed 14 times and the case took 10 years [for completion],” she said. “This attitude has to change.”
Meanwhile, weeks after the Bill was passed in the Assembly, the mass protests in Kolkata against the crime and against what the larger public believes is the government’s attempts at a cover-up in the hospital show no signs of ending.
The junior doctors spearheading the protest since August 9 were directed by the Supreme Court to resume work but have refused to obey. Their defiance, despite the disruption to medical services to thousands, has nevertheless found support among the masses and among the senior doctors in the State.
