The West Bengal Government Legislature has passed a new bill, titled “The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024”. The bill is focused on introducing enhanced punishments for convicts of rape, and establishing new procedural frameworks for investigation and trial of rape in West Bengal. This piece is not a discussion on the context, motivation or political climate responsible for introducing the bill. This piece instead seeks to explain first, (briefly) what the bill seeks to introduce, then understand whether the WB Government can enforce this law, and third, what are the implications of such a law moving ahead.
Background – What are the Amendments?
The bill has introduced changes to punishment, and changes to procedure. With regard to changes in punishment the bill has amended provisions of the Bharatiya Nyaya Sanhita, 2023 (sections 64, 65, 66, 70, 71 and other provisions) and the Protection of Children from Sexual Offences (POCSO), 2012 (sections 4, 6 and other provisions). These provisions stand amended within the territory of West Bengal. A look at all the amendments to punishments, one can infer two things.
First, the bill has sought to “step up” the punishments in the above provisions. Where the punishment under BNS provided for a ten or twenty year imprisonment the new bill provides for a revised punishment of “remainder of life”. Where the BNS already provided for life imprisonment, the new bill introduces a punishment of “rigorous imprisonment for remainder of life”. The new bill also introduces death as an alternate punishment in a number of crimes, and specifically amending section 66 of the BNS (rape which causes death of women, or causes persistent vegetative state) the new bill provides for a single punishment, that is, death.
Second, BNS punishes the rape of women under the age of sixteen more severely (differentiates between punishment for rape where the victim is under the age of sixteen (section 65 of BNS), and where the victim is above the age of sixteen. The new bill omits section 65 and provides for a single stringent punishment without the differentiation of age.
With regard to procedural changes, the bill has introduced a task force, christened as the “Aparajita Task Force” for the investigation of rape cases within the state of West Bengal. The bill also seeks to establish special courts for the trial of rape cases within West Bengal.
What to expect ahead
Criminal Law, and Criminal Procedure are matters of the concurrent list (entries 1 and 2 respectively). This means, the central government and the state government are both empowered to make laws on these matters. Where a state enacts a law, which is repugnant to the provisions of a union law, with respect to a matter on the concurrent list the central law sill be upheld. In order for the state law to prevail, it must receive the assent of the President. (Art. 254)
In the Aparajita bill, not all provisions are repugnant to the Union legislation (BNS). Provisions amending punishments in the act are repugnant. However, provisions introducing procedural frameworks (task force and special courts) are not hit by repugnancy. These provisions are in addition to the Union legislation and not in conflict with it. It is a settled point of law that, a state’s legislation on matters on the concurrent list can complement a Union legislation, without conflicting it.
This leads to an interesting position of law, where only a portion of the bill is repugnant to the Union law. In its present form, the bill would require the assent of the President to enter force. However, if the amendments to procedure can be severed from the bill to form a new bill, such a bill (severed bill) would require only the assent of the governor. This is because the procedural amendments are not repugnant to the Union law, rather only complementary to it.
Note of Caution
One of the fundamental principles of the Indian Criminal Justice System is the philosophy of “restorative justice”. That is, the system believes in restoring/rehabilitating a criminal to the mainstream of society. This is in stark contrast to the philosophy of “retributive justice”, which is centered on the idea of punishing the criminal, often with a punishment “equivalent” or proportional to the pain the victim received as a result of the crime. A plenary reading of the bill shows that bill reeks of a sense of “retributive justice”. The new bill leaves no scope for the reform and re-entry of a rape convict into mainstream of society. Without regard to the act of rape, the bill provides for only two punishments, i.e., rigorous imprisonment for remainder of life, or death; and in certain conditions only death. While there is no bar on increasing severity of punishments, the law must indicate an outlook of reform of an individual and his re-entry into society. As for death as a punishment, Indian jurisprudence still stands firm on the principle of capital punishment only in the “rarest of rare cases”. It is a settled principle of law that even in the gravest crimes, life imprisonment is the rule, while death is only an exception.
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