• Home
  • Blog
  • ENHANCING JUSTICE: THE APARAJITA WOMAN AND CHILD (WEST BENGAL CRIMINAL LAWS AMENDMENT) BILL, 2024 – A NEW ERA IN ANTI-RAPE LEGISLATION
Law

‘Of late, crime against women in general and rape in particular is on the increase…Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying accused on charges of rape’. State of Punjab v. Gurmeet Singh (2014) 9 SCC 632

The recent introduction of The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, adds a significant piece to the Indian legal framework. However, like many legislative measures, it raises important questions.

In this article, we will explore all facets of the newly enacted Bill, examining its provisions, amendments, potential loopholes, and its effectiveness in delivering justice for victims while ensuring accountability for the accused.

To better understand the rationale behind this legislation, we must first consider the context: why, despite the existence of numerous laws aimed at protecting women, is there a need for this new legislation?

Background and Introduction

The passing of this Act was largely catalyzed by the tragic case of a female junior doctor at RG Kar Medical College in Kolkata, who was brutally assaulted and murdered during a night shift at the hospital. The investigation revealed significant shortcomings, including delays in arresting the accused, mishandling of evidence, and protracted police inquiries which further fueled outrage among both the medical community and the general public. This tragedy ignited a nationwide call for justice, prompting widespread protests demanding swift action.

In response to this public outcry, the Mamata Banerjee-led government introduced the Anti-Rape Bill, presented by the State Law Minister of the State, Moloy Ghatak, in the West Bengal Legislative Assembly. The bill garnered unanimous support and was passed on September 3, 2024, with backing from both the Trinamool Congress and the Bharatiya Janata Party (BJP).

Aim of this Bill

This bill aims to enhance protection for the women of the state as well as provide stringent, stricter punishment to the abusers of such heinous crimes.

The Aparajita Woman and Child Bill, (West Bengal Criminal Laws and Amendment) Bill,2024 seeks to impose death penalty as punishment for rape to the convicts, if the victim dies as the result of assault and a life sentence in the case of rape and gang rape. It further proposed for the creation of a Special Task Force at the district level namely the ‘Aparajita Task Force’ and establishing a Fast Track Court. 

Significant element proposed in the Bill

The Aparajita Bill introduces three critical elements- enhanced punishment, speedy investigation, and rapid dispensation of justice. It proposed to amend certain parts of the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the POCSO (Protection of Children from Sexual Offences Act), 2012 in its applications for the respective State.

Comparative Analysis of Proposed Amendments

1. Bharat Nyaya Sanhita, 2023 (BNS)

The Aparajita Bill aims to amend several sections of the BNS, specifically Sections 64, 66, 70(1), 71, 72(1), 73, and 124(1) and (2).

Notably, Section 64 of the BNS establishes a punishment of rigorous imprisonment for a minimum of 10 years. The Aparajita Bill enhances this provision by stipulating that a convict must serve a natural life sentence, introducing the death penalty as an additional option.

Section 66 of the BNS allows for a rigorous jail term of up to 20 years, life imprisonment, or death under specific circumstances. In contrast, the new Anti-Rape Act mandates capital punishment for the offender if the victim either dies or is left in a vegetative state due to the abuse.

Furthermore, the amendment to Section 70 of the BNS specifies that, in cases of rape, the penalties are limited to life imprisonment or the death penalty.

2. Bhartiya Nagarik Suraksha Sanhita, 2023(BNSS)

The bill introduces a framework for time-bound investigations and trials in rape cases. It mandates that investigations must be completed within 21 days of the initial report, significantly reducing the previous two-month timeframe. An extension of 15 days may be granted, but only with proper justification. Under the existing BNSS, the time limit for both investigation and trial is set at two months from the date of the FIR.

3. POCSO (Protection of Children from Sexual Offences Act), 2012

The Bill proposes an increase in the minimum punishment for sexual assault to 7 years, up from the previous minimum of 3 years, which could extend to 5 years under the Prevention of Children from Sexual Offences Act, 2012.

The Additional Provisions proposed in the Bill

Establishment of Specialized Fast Track Courts: The Bill proposes the creation of 52 special courts dedicated to handling cases related to sexual offences.

Protection of Victim’s Identity: The Bill emphasizes the paramount importance of privacy for women in cases of offences such as rape and acid attacks, reinforcing the Right to Privacy for victims.

Restrictions on Publication: Additionally, the Bill imposes stringent penalties for the unauthorized publication of court proceedings related to sexual offences, with penalties ranging from 3 to 5 years of imprisonment.

Key Challenges in Implementing the Bill

Constitutional Validity: Article 246 of the Indian Constitution grants states the authority to legislate on matters within the State List. However, the amendments proposed by this Bill fall under the Concurrent List, which is part of Central law. This raises the issue of requiring the President’s assent to override existing central legislation. While this presents a potential challenge, the sensitive nature of the issues addressed may mitigate resistance.

Impractical Timeframe: The current timelines for designated authorities to implement processes are already tight. By further compressing these timelines, the Bill may face difficulties in practical application, potentially resulting in a gap between the proposed measures and their actual enforcement.

Overburdened Courts: While there is ongoing criticism about the overburdened state of the courts, it’s important to recognize that public demands can contribute to this backlog. Instead of creating new courts, there is a pressing need for reform and the addition of more judges to the existing system in West Bengal.

Legal Rights of the Accused: The Bill’s emphasis on a speedy trial may conflict with the legal rights of the accused, who are entitled to a fair trial. This could lead to prolonged legal processes through appeals and mercy petitions, countering the Bill’s objective of swift justice.

Lack of Provisions for Men: As with many new legislations, this Bill addresses issues primarily related to women, overlooking provisions for the protection of men from offences or false allegations. Questions arise about the imbalance in penalties: why is there a specific punishment for a woman’s rape but not equivalent provisions for attempted rape against a man? These discrepancies warrant critical reflection to uphold a sense of fairness and morality in our legal system.

From Theory to Practice: Will the Act Be Implemented Effectively?

Despite the existence of numerous Acts aimed at protecting women, the rising incidence of offences against them remains a stark reality. The passage of The Criminal Law (Amendment) Bill, 2012, following the horrific gang rape in the Nirbhaya case, still left us grappling with similar tragedies. Similarly, The Sexual Harassment of Women (Protection, Prevention and Redressal) Act, 2013 was enacted in response to the Vishaka v. State of Rajasthan case.

Alarmingly, there are more reported cases than there are provisions within the Prevention of Children from Sexual Offences Act, 2012. This underscores the pressing need for more than just new legislation; we must also focus on elevating societal morality. Rape should not be viewed solely as a sexual crime; it is fundamentally an act of aggression that seeks to dominate the victim. Beyond the psychological trauma, victims often face significant social stigma, further complicating their path to healing and justice.

Judicial sensitivity

The sensitivity of the judiciary is reflected and pioneered by the following statements of Hon’ble Justice Krishna Iyer in the case of Rafiq vs. State of Uttar Pradesh, (1980) 4 SCC 262 that- “When a woman is ravished what is inflicted is not merely physical injury, but the deep sense of some deathless shame…”

In the landmark case of Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490, the court introduced a groundbreaking concept regarding the nature of rape. It ruled that rape is not merely an offence under the IPC but also a violation of a woman’s right to live with dignity and personal freedom. Justice Saghir Ahmed, speaking on behalf of the court, emphasized, “Rape is thus not only a crime against the person of a woman; it is a crime against society as a whole, undermining the psychological well-being of women and plunging them into deep emotional turmoil. It is a violation of basic human rights and infringes upon the victim’s most cherished Fundamental Right— the Right to Life as enshrined in Article 21.”

When it comes to the imposition of the death penalty for rapists, some women’s activists argue that the gains made over the years in securing justice for women could be jeopardized if the law is amended to include capital punishment. They express concern that a higher acquittal rate might result, inadvertently increasing the pressure on victims not to report such crimes.

Consensus 

The statistics in this regard is grim and shocking to be looked at. According to the National Crime Records, which reflect the social degeneration, almost 75% of rapists are married men who have sex regularly at home, 86% of women do not feel safe in cities and 3 out of every 10 rapists are either friends or relatives of the victims. According to the World Health Organization, a woman is raped in India every 54 minutes, highlighting a grim reality even as we celebrate our country’s progress.

Conclusion

Along with laws, we need moral values and sensibility to help stop these crimes. Making lengthy Bills and provisions, alone, would not prevent the hapless abusers to commit crimes. The best proposal of this bill is the introduction of Capital Punishment but there are various Human Rights Activists who justify banning this punishment claiming the Right to Life of the convicts but the right to life of the victims who lost their lives is not given such importance.

Author: Shireen Akram Khan

Surendranath Law College, 4th year, B.A.LL.B (Honours)

Lets Connect

Disclaimer

As per the rules of the Bar Council of India, law firms are not permitted to solicit work and advertise. By clicking the “Agree” button and accessing this website (www.daslegal.co.in) the user fully accepts that you are seeking information of your own accord and volition and that no form of solicitation has taken place by the Firm or its members.

The information provided under this website is solely available at your request for information purposes only. It should not be interpreted as soliciting or advertisement. The firm is not liable for any consequence of any action taken by the user relying on material / information provided under this website. In cases where the user has any legal issues, he/she in all cases must seek independent legal advice.