The West Bengal Assembly has passed the Aparajita Women and Children (West Bengal Criminal Law Amendment) Bill, 2024 which aims to address the issues of violence against women.
It includes the death penalty and the harshest punishment for rape and sexual assault.
Key provisions of the Aparajita Bill, 2024:
Proposal to amend the BNS 2023, BNSS 2023 and POCSO 2012 Acts:
The proposed Bill aims to amend several legal provisions including the Bhartiya Nyaya Sanhita (BNS) 2023, the Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023 and the Protection of Children from Sexual Offences Act, 2012 (POCSO). The provisions of the Bill will be applicable to survivors and victims of all age groups.
Death penalty for rape:
The Bill proposes death penalty for rape convicts if the act results in the death of the victim or she goes into unconsciousness / vegetative state.
The punishment for rape under the BNS Act is as follows:
Penalty for rape and imprisonment for a minimum of 10 years; Minimum imprisonment of 20 years for gang rape which may extend to life imprisonment; Minimum 20 years rigorous imprisonment or death penalty for cases of rape in which the victim dies or becomes unconscious.
Timely inspection and testing:
The investigation of rape cases should be completed within 21 days of the initial report and the trial should be completed within 30 days. Extension of time limit is permissible only with written justification from a senior police officer.
The time-limit for investigation and trial under the BNSS Act is 2 months from the date of FIR.
Setting up of Fast-Track Courts:
It also provides for setting up of 52 Special Courts dedicated for speedy disposal of cases of sexual violence.
Aparajita Task Force:
The Bill provides for the establishment of a special task force at the district level, headed by a Deputy Superintendent of Police, dedicated to the investigation of rape and other atrocities against women and children.
Stringent punishment for repeat offenders:
The Act provides for life imprisonment for repeat offenders and provides for death penalty if the circumstances so warrant.
Protecting the identity of victims:
The Bill includes provisions for protecting the identity of victims and ensuring their privacy and dignity during the legal process.
Penalty for delay in justice:
It provides for punishment for police and health officials who fail to act in time or tamper with evidence. The purpose is to make officers accountable for any negligence in the judicial process.
Publication Ban:
The Bill provides for stringent punishment for unauthorised publication of court proceedings relating to sexual offences with imprisonment ranging from 3 to 5 years.
Challenges related to Aparajita Bill 2024:
The constitutional validity:
The Aparajita Women and Children (West Bengal Criminal Law Amendment) Bill, 2024 seeks to amend central laws, raising concerns over its constitutional validity and jurisdictional issues.
Under Article 246 of the Indian Constitution, states have the right to make laws on issues listed in the State List. However, complexity arises from the concurrent authority over criminal laws. If the bill bypasses the central law, it will need the President’s assent.
Unrealistic time limit:
Given the complexity of rape cases and the existing backlog in the legal system, completing the investigation within 21 days is a big challenge.
Legal Challenges:
There have been several instances in which state amendments to central laws have been challenged in the courts. For example:
State of West Bengal v. Union of India (1964):
In this the Supreme Court, while affirming the supremacy of Parliament, invalidated the West Bengal Land Reforms Act, 1955 for being inconsistent with the Central Land Acquisition Act, 1894.
K. K. Verma v. Union of India (1960):
The Supreme Court in this case struck down the Madhya Pradesh Agricultural Produce Markets Act, 1958 due to its incompatibility with the Central laws.
These cases underline the judiciary’s stand on the supremacy of central law over state amendments.
Challenges of implementation:
There could be impediments in the effective implementation of the Bill, which would require upgradation of law enforcement infrastructure and special training for police and judicial officers.
Overburdened Courts:
Indian courts face inordinate delays, taking on average more than 13 years to resolve cases. This backlog can hamper timely hearing after a quick check.
The legal rights of the accused:
The legal mechanism guarantees the right to a fair trial for the accused, which can delay the process through appeals and mercy petitions.
Notable:
Criminal law in India is regulated by both the state and central governments, as it falls under the concurrent list of the Constitution, enabling both tiers to legislate on the subject.
Laws relating to rape in India:
Criminal Law (Amendment) Act 2013:
It was enacted for effective legal deterrence against sexual offences.
The minimum punishment for rape under the Act was changed from 7 years to 10 years. Further, in cases where the victim dies and goes into unconsciousness, the minimum punishment has been duly increased to 20 years.
Further, the Criminal Law (Amendment) Act, 2018 was enacted to prescribe more stringent penal provisions including death penalty for rape of a girl below the age of 12 years.
The Protection of Children from Sexual Offences Act, 2012 (POCSO):
POCSO was enacted to protect children from sexual abuse, sexual harassment and pornography.
The Act raised the age of consent to 18 years (which was 16 years as of 2012) and criminalized all sexual activity for those under 18 years of age, even if consent existed between two minors.
The Act was also amended in 2019 to provide for enhanced punishment for various offences to ensure safety, security and dignity of children.
The rights of rape victims:
Right to Zero FIR:
Zero FIR means that a person can file an FIR in any police station irrespective of the jurisdiction in which the incident took place.
Free medical treatment:
According to Section 357C of the Code of Criminal Procedure (Indian Civil Security Code (BNSS), no private or government hospital can charge for the treatment of rape victims.
No two-finger test:
No doctor will have the right to conduct a two-finger test while conducting a medical examination.
Right to Compensation:
A new provision has been introduced in the form of Section 357A of CrPC, which provides certain amount as compensation to the victims.
What are the challenges regarding women’s safety:
High incidence of crimes against women:
Data from the ‘Crime in India’ report of the National Crime Records Bureau (NCRB) shows that crimes registered against women increased from 3.37 lakh in 2014 to 4.45 lakh in 2022, an increase of more than 30%.
The crime rate (crimes per lakh women) also increased from 56.3 in 2014 to 66.4 by 2022.
The patriarchal mindset:
The deeply entrenched patriarchy in society promotes male domination and authority, treats women as commodities and creates a hostile environment.\
This cultural mindset is a major barrier to women’s safety and equality.
Objectification by media:
Media portrayal often objectifies women, diminishes their autonomy and contributes to a culture that disregards women’s rights. This commodification reinforces harmful stereotypes and social attitudes.
Delayed justice and legal challenges:
The slow legal process and irregular provision of death penalty add to the trauma for the victims. Along with the ongoing debate about the effectiveness of the death penalty, access to timely justice also remains an important issue.
Lack of Education and Awareness:
Inadequate sex education and discussions about consent and gender sensitivity perpetuate harmful stereotypes and ignorance, which hinder effective interventions.
Infrastructure and Security Measures:
Poorly lit roads, inadequate public transport and lack of safe public toilets increase women’s vulnerability. Infrastructure and safety measures need to be improved.
Solution:
Comprehensive legal framework:
There is a need to strengthen punishment for crimes against women under the Indian Penal Code, enact special laws for stalking, cyber harassment and domestic violence and establish special courts and police units for speedy justice.
Fast-track courts:
Set up fast-track courts as recommended by the Justice Verma Committee and enhance punishment for serious cases like rape.
Increase the representation of women in the judiciary.
Social and cultural changes:
There is a need to integrate gender equality education in schools and colleges, support community initiatives that raise awareness of women’s rights, and implement policies for women’s economic empowerment and participation in decision-making.
Effective Law Enforcement and Justice System:
Provide gender-sensitive training for police, create special units for violence against women and set up victim support centres.
Infrastructure and Technology:
There is a need to upgrade public transport systems, install CCTV cameras in public areas and develop security apps and emergency response systems.
Empowerment and Awareness:
Campaign to educate women about their rights and encourage reporting of violence, and support women’s organizations to strongly publicize their efforts.
