THE APARAJITA BILL: AN ANALYSIS OF WEST BENGAL'S NEW LAW ON SEXUAL VIOLENCE

In the wake of a tragic incident that shook West Bengal in August 2024, the state government has taken a significant step by passing the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024. This legislation, aimed at addressing sexual violence against women and children, has sparked intense debate among legal experts, activists, and citizens alike. While the bill's intentions are undoubtedly noble, a closer examination reveals some concerning aspects that merit careful consideration.

A TRAGIC INCIDENT AND PUBLIC OUTCRY

The brutal rape and murder of a resident doctor at R.G. Kar Medical College in August 2024 sent shockwaves through Kolkata, quickly spreading to other parts of West Bengal and eventually resonating across India. The incident ignited widespread protests, compelling the state government to take swift action. This response, while understandable, raises questions about the efficacy of hastily drafted legislation in addressing complex societal issues.

KEY PROVISIONS OF THE APARAJITA BILL

The Aparajita Bill introduces several significant changes to existing laws:

• Enhanced Punishments: The bill amends relevant sections of the Bharatiya Nyaya Sanhita (BNS), the newly enacted penal code, to introduce the death penalty or life imprisonment for rape.
• Mandatory Minimum Sentences: Life imprisonment, defined as imprisonment for the remainder of a person's natural life, becomes the mandatory minimum sentence for rape.
• Special Courts: Amendments to the Bharatiya Nagarik Suraksha Sanhita (BNSS) establish special courts for expeditious trials of sexual violence cases.
• POCSO Act Revisions: The Protection of Children from Sexual Offences (POCSO) Act, 2012, is amended to include the death penalty for penetrative sexual assault and aggravated sexual assault.

UNINTENDED CONSEQUENCES AND LEGAL CONCERNS

While the bill's proponents argue that harsher punishments will serve as deterrents, legal experts and scholars have raised several concerns:

POTENTIAL REDUCTION IN CONVICTION RATES

Counterintuitively, stricter penalties may lead to lower conviction rates. As judicial scrutiny intensifies with harsher sentences, securing convictions becomes more challenging. This is particularly problematic in India, where conviction rates for rape are already low due to factors such as inadequate police investigations and hostile court environments for survivors.

DECREASED REPORTING OF SEXUAL VIOLENCE

The introduction of the death penalty may inadvertently reduce reporting rates, especially in cases where the perpetrator is known to the victim. Studies indicate that survivors are often reluctant to come forward if they fear their complaint might result in a death sentence for a family member or someone within their social circle.

CONSTITUTIONAL CONCERNS

The mandatory death penalty provision in the bill contradicts established legal principles. The Indian Supreme Court, in Mithu v. State of Punjab, deemed the mandatory death penalty unconstitutional. This position has been reiterated by several High Courts and aligns with the global legal trend that judicial sentencing discretion in capital cases is constitutionally required.

IGNORING EXPERT RECOMMENDATIONS

The Justice J.S. Verma Committee, established after the 2012 Delhi gang rape case, explicitly advised against recommending the death penalty for rape, even in the rarest of rare cases. The committee asserted that seeking the death penalty would be a regressive step in sentencing and reformation.

THE BROADER CONTEXT

To fully understand the implications of the Aparajita Bill, it's crucial to consider India's broader gender justice landscape:

• India ranks 128th out of 177 countries in the Women, Peace and Security Index 2023, highlighting significant challenges in women's inclusion, justice, and security.
• According to the National Crime Records Bureau (NCRB), crime against women in India rose by 12.9% between 2018 and 2022.
• The majority of sexual violence cases in India involve acquaintance rape, yet the bill's focus on stranger rape and capital punishment overlooks this reality.
• The exemption of marital rape from legal scrutiny remains a significant gap in India's legal framework for addressing sexual violence.

LEGAL AND PROCEDURAL CONSIDERATIONS

The Aparajita Bill's journey from legislation to implementation involves several important steps:

• Concurrent List Approval: As criminal laws fall under the Concurrent List of the Seventh Schedule of the Indian Constitution, the bill requires approval from the state Governor and the President of India. This is by Article 254(2) of the Constitution.
• No Specified Timeline: There needs to be a constitutionally mandated timeline for approving such bills, which may lead to uncertainty in its implementation. Historical precedents show that presidential assent for state bills can take a few weeks to several months or even years.
• Potential for Judicial Review: Given the constitutional concerns raised by legal experts, the bill may face challenges in court once it receives presidential assent. The Supreme Court has the power to review and strike down provisions that it finds unconstitutional.

A CALL FOR COMPREHENSIVE REFORM

While the Aparajita Bill represents a well-intentioned effort to address sexual violence, its approach raises significant concerns. Rather than relying solely on harsher punishments, a more effective strategy might involve:

• Strengthening investigative procedures and forensic capabilities.
• Improving support systems for survivors throughout the legal process.
• Addressing societal attitudes and norms that contribute to sexual violence.
• Investing in education and awareness programs to prevent sexual violence.
• Reforming the criminal justice system to ensure faster and more effective trials.

As we move forward, it's crucial to engage in thoughtful, evidence-based discussions about how best to protect women and children from sexual violence. While the urgency of the issue is undeniable, lasting change will require a comprehensive approach that addresses the root causes of violence and strengthens the entire justice system.