In wake of the brutal rape and murder of a young doctor in R.G.Kar medical college and hospital in Kolkata last month and the public outrage and protests that followed, West Bengal’s legislative assembly on September 2, passed the ‘Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024.’
West Bengal Governor C.V. Ananda Bose has not assented to the bill, referring it to President Droupadi Murmu.
The bill seeks to amend the Prevention of Children from Sexual Offences (POCSO) Act, 2012, along with the recently enacted Bharatiya Nyaya (Second) Sanhita (BNS) 2023 (containing definitions of and punishments for criminal offences) and The Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS), 2023 (containing rules of criminal procedure), in its application to the state of West Bengal.
These amendments aim to enhance punishment for convicts and provide expeditious investigation and speedy trial for violence against women and children, including by establishing special courts.
Dubious legislative aims
The statement of objects and reasons of the bill states that the law is “to create a safer environment for women and children” in the state by amending BNS – the penal code that applies to the entire country. It claims that this is a “testament to the state’s unwavering commitment to uphold fundamental rights” of women and children and will ensure that rape and sexual offences against children are “met with the full force of the law.” It also proposes a dedicated special court and investigation team for providing swift justice.
However, there is not much clarity on how increasing the punishments for sexual offences will create a safer environment for women and children in the state. On the contrary, several empirical studies have found that capital punishment or prolonged incarceration does not act as a deterrent for rape.
The state’s claim that its enhancement of punishment demonstrates a commitment to upholding the rights of women and children is hollow and superficial. While the need for speedy justice, not only in this context but for all offences, cannot be denied, the main concern with “swift justice” is that fundamental principles of criminal law – such as the presumption of innocence until proven guilty and the rights of the accused to a fair trial – and other procedural aspects may be compromised, which should not be the case.
Enhanced punishment and populism
Substantively, the bill enhances punishment for rape in all forms, regardless of the victim’s. It introduces life imprisonment for the remainder of the person’s natural life as a minimum mandatory sentence (MMS) that needs to be compulsorily awarded as punishment by the court, as well as death penalty for several categories of rape in BNS and child sexual offences in POCSO Act.
These include the offences of rape (Section 64(1) of BNS), aggravated forms of rape such as custodial rape (Section 64(2) of BNS), gang rape (Section 70 of BNS), penetrative sexual assault (Section 4 of POCSO Act) and aggravated penetrative sexual assault (Section 6 of POCSO Act).
There are two major concerns with these provisions. First, by implication, the new law fails to differentiate between rape, aggravated forms of rape and gang rape in the BNS, and between penetrative sexual assault and aggravated penetrative sexual assault in POCSO Act. This is because for all these offences, the punishment prescribed is nothing less than a life imprisonment for the remainder of the person’s natural life. This undermines the basic principles of a sentencing policy – that the punishment must be proportionate to the gravity of offences and the extent of harm caused, and there must be certainty and fairness.
Second, the amendments treat a mechanical maximisation of punishment for all sexual offences as a magic wand that would ensure safety of women and children from sexual offences. The reasoning that this will lead to deterrence is not only a populist trope, but also a flawed one that remains unsubstantiated by statistics. The central government adopted a similar approach when the BNS increased punishments and prescribed enhanced punishments as MMS for offences of rape in comparison with the erstwhile Indian Penal Code, 1860. With the Aparajita Bill, this perception of higher punishments and a prolonged incarceration as a swift, fool-proof solution to rape and sexual offences, has heightened manifold.
Groups protesting against the RG Kar case have demanded death penalty just as those protesting against the 2012 Delhi gang rape had demanded death penalty and castration. In 2019 too, public lynching, death penalty and castration of rapists were demanded in the Rajya Sabha. However, state and the Union government have a superior responsibility to refrain from pandering to such populist demands and knee-jerk responses which would not alter outcomes in delivering justice or in preventing the commission of such offences.
There is no data to prove that death penalty or imprisonment for a prolonged period acts as an effective deterrent. For instance, Criminal Law (Amendment) Act 2013 increased the punishment for rape along with causing death or resulting in a persistent vegetative state of the woman (section 376A Indian Penal Code, 1860 – IPC) and introduced death penalty for the same. However, the official statistics of National Crime Records Bureau (NCRB) indicates that in the year 2020, there were 219 reported incidents of murder with rape or gang rape, which increased to 248 reported incidents in the same category in 2022.
Another case in point is the Criminal Law (Amendment) Act 2018 which enhanced the minimum punishment for rape under section 376 of the IPC to 10 years’ imprisonment. NCRB statistics for rape indicate 28,046 reported incidents in 2020, which increased to 31,516 in 2022. These statistics clearly demonstrate that enhancement of punishments for categories of rape have had no deterrent effect whatsoever and have not reduced the incidence of such offences.
Criminologists such as Beccaria emphasised on certainty and celerity (swiftness) of punishment as having more of a deterrent effect than severity of punishment. Furthermore, as per the NCRB statistics, more than 90% of rape incidents involve accused who are known to the victim (including their family members, relatives and neighbours). Hence, imposition of death penalty or prolonged imprisonment as an MMS would deter the reporting of the crime by the victim, who may face pressure from her family and community to suppress the commission of the offence.
Significantly, there are also chances of increased violence on the victim, including murder, to destroy evidence and ensure that the victim is in no condition to identify the perpetrators. This risk is particularly pronounced for child victims of sexual offences, who will find it difficult to overpower a gang of perpetrators or escape from them. Furthermore, enhanced punishments reflect a retributive approach to justice by the state which is contrary to the global trend towards reparative and restorative justice. For these reasons, among others, scholars have opined that death penalty for rape is a counterproductive approach to justice and not a solution.
In the case of child sexual offences, empirical studies indicate that certainty of punishment, facilitated by an efficient functioning of the criminal justice system and increased enforcement of the law act as better deterrents for all crimes, including crimes against children. In the Indian context, a study by Macquarie University and Haq Centre for Child Rights, concluded that the implementation of stricter penalties for child sexual offences does not have a corresponding deterrent effect; it also stated that according to evidence, increasing the certainty and swiftness of punishment was more effective in comparison.
Complete elimination of judicial discretion
The bill eliminates judicial discretion in an absolute manner in all the offences mentioned above, by compelling the judge to award the minimum mandatory sentence of life imprisonment. We admit that there have been judgments where the court awarded a punishment lower than the MMS while convicting the accused for rape, either due to the perceived immoral character of the victim, such as in Raju vs. State of Karnataka, or due to “peculiar facts of the case and conduct of the victim” as in the case of Prem Chand and Another vs. State of Haryana. Institutional bias needs to be addressed differently, not through providing the convicting judge with limited options while deliberating on punishment for rape. It may not be a sound policy of criminal justice because a prolonged period of imprisonment as MMS may weigh heavily on the judge’s mind, leading to an increased threshold of evidence required for a conviction, thereby reducing the possibility of conviction of the rape accused.
In the context of child sexual offences, courts have, on multiple occasions, emphasized the need for expanded judicial discretion to mitigate the severity and rigour of law on rape for boys in the age group of 16 to 18 years. Consequently, a further curtailment of judicial discretion through the Aparajita Bill will unequivocally impose upon such juveniles, a strict penalty of life imprisonment, providing them with no opportunity for reformation and reintegration into society.
Furthermore, unbridled discretion of investigating officers may be more dangerous than limited judicial discretion that is written into the law. There is every possibility that the police, while registering the First Information Report (FIR), and the investigating officer, while preparing the chargesheet, may omit sections dealing with prolonged imprisonment as MMS and charge the accused with offences that carry lesser sentences. These include offences such as assault or use of criminal force to woman with intent to outrage her modesty (punishable with one to five years’ imprisonment under section 74, BNS) and attempt to rape (punishable with half of the punishment prescribed for the offence of rape under section 62 BNS). This possibility increases substantially with the social, economic or political clout of the accused. Such a phenomenon will be counter-productive to the cause of justice.
Impractical and unreasonable amendments in procedures
Procedurally, the bill introduces modifications to provisions on investigation prescribed in POCSO Act and BNSS aimed at speedy justice. For this purpose, it establishes a special ‘Aparajita Task Force’, headed by a Deputy Superintendent of Police, for investigation of rape and child sexual offences. However, the investigative powers of the task force are devoid of any guidelines or systems of accountability, rendering its authority vague and arbitrary.
The bill requires investigations by the task force to be completed within 21 days of the registration of the FIR. This unrealistic timeline creates a substantial risk of hastened and inefficient investigations and a potential abuse of authority, leading to wrongful prosecutions. Conversely, as a result of the stringent time frame, it may also exacerbate the existing reluctance of the police in registration of FIRs for sexual offences.
The amendment also mandates that the investigating officer must be a woman. Women police personnel constituted 9.95% of the total police force in West Bengal in 2022 as per statistics of Bureau of Police Research and Development). Given this context and the high incidence of sexual offences, this procedural requirement is unrealistic and likely to face challenges in its implementation. Further, the assumption that only a woman investigating officer would be professional, efficient, unbiased and sensitive in investigating sexual offences is flawed and remains unsubstantiated. A more balanced approach could warrant the presence of female officers during investigations, if available, regardless of the gender of the investigating officer.
The ghosts of Disha and Shakti Bills
The Aparajita Bill is, in many ways, another avatar of The Andhra Pradesh Disha Bill of 2019 and the two related Shakti Bills of Maharashtra – Maharashtra Shakti Criminal Law (Maharashtra Amendment) Bill 2020 and the Maharashtra Exclusive Special Courts (for Certain Offences Against Women and Children Under Shakti Law) Bill 2020.
These bills were passed unanimously by their respective state legislatures, but did not receive presidential assent. Activists and the legal fraternity had expressed scepticism over the efficiency of the Disha Bill in preventing crimes against women and dismissed it as a knee jerk reaction of the state legislature. The Shakti Bill was called out by lawyers and activists for its draconian, protectionist, regressive and misplaced patriarchal solution to the issue of sexual violence. These bills too provided for death penalty for rape, prescribed tighter and impractical timelines for investigation and trial, and attempted to establish special courts. The Aparajita Bill replicates them without making any effort to remedy their shortcomings and goes one step further in establishing a special task force.
Due diligence
India has ratified the UN Convention on Elimination of Discrimination Against Women (CEDAW) and is bound by its provisions. Its principles of state obligation to respect, protect and fulfil human rights of women, are applicable to all state agencies and officials within the country in relation to violence against women. The concept of due diligence works as a yardstick to measure the performance of the state in fulfilling its obligations. The due diligence framework consists of five ‘P’s: prevention, protection, prosecution, punishment and provision of redress/reparations to victims.
At the preventive level, the due diligence framework warrants that the state addresses underlying causes of violence, works at transforming the mindset of people, eliminates risk factors, provides outreach to victims, broadens the scope of programmes on violence against women, formulates comprehensive laws with effective implementation, incorporates intersectionality for at-risk groups, collects data and collaborates with women’s organisations.
At the level of protection, the state is obliged to ensure availability and accessibility of support services to victims, upholding duties of first responders and fostering positive attitudes through training of all relevant personnel.
The due diligence standard on prosecution warrants aspects including establishing an affirmative duty to investigate and prosecute efficiently, fairly and sensitively, providing legal aid and support, and ensuring an efficient dispensation of criminal justice.
In punishment of perpetrators, the due diligence standard entails certainty of punishment, ensuring that the punishment is commensurate with the offence, and broadening the available criminal law regime beyond incarceration.
In providing redress and reparations to victims, the state is expected to adopt a victim-centric perspective, assuming responsibility for recovering reparation from perpetrators and working towards institutional reform for transformational change.
For a state to have fulfilled its due diligence obligation, it would need to discharge most or all of these responsibilities. It is evident that the Aparajita Bill, as well as its predecessors from Andhra Pradesh and Maharashtra, fall woefully short of the required standard of due diligence.
The Aparajita Bill has neither focussed on prevention, nor on protection and prosecution in a constructive manner. Merely increasing punishments and introducing provisions for fines to be paid to the victim does not fulfil the state’s responsibilities regarding punishment and reparations. Most importantly, it is imperative that the West Bengal government addresses the root causes of sexual violence against women and children. The bill in its current form merely pays lip service to the cause of justice for sexual violence.
The way forward
The West Bengal government ought to have learnt from the experiences of Andhra Pradesh and Maharashtra in attempting to pass draconian amendments aimed at temporarily assuaging public outrage about increasing incidence of sexual violence. It would have done well to pay attention to the scathing critique these bills received from the legal fraternity, feminist scholars as well as women and child rights activists working on the ground.
In 2013, the Justice Verma Committee had noted that the efficiency of law enforcement machinery is essential for an effective implementation of laws on sexual violence. In 2020, the Parliamentary Standing Committee on Human Resource Development acknowledged that despite the legislative framework being in place, women continued to face violence. It recommended a proper implementation of existing laws, provision of institutional and infrastructural measures, public education and awareness, and adequate utilisation of funds allocated under various schemes for the safety of women. Bridging the gap between the written law and its implementation entails skill-building of personnel, ensuring accountability of police, investigation and prosecution, and eliminating institutional bias wherever it may exist.
The misplaced emphasis on enacting newer and more draconian amendments to criminal law needs to be replaced with concrete, long-term measures and concerted government effort at the ground level. This has more potential to make inroads into the culture of impunity that currently exists around sexual violence against women and children.
Saumya Uma is a Professor of Law and Director, Centre for Women’s Rights, Jindal Global Law School, O.P. Jindal Global University. She researches, writes, and teaches at the intersections of human rights, gender, and the law.
Dhruv Madan is a third year student at Jindal Global Law School with a special interest in criminal law.
The opinions expressed in this article are the authors’ own.