Nirbhaya, a 23-year-old physiotherapy student and a victim of rape-mutilation-murder, died on December 29, 2012. Her agonising death, two weeks after her gang-rape in a bus in New Delhi, set the country ablaze with outrage. The crime’s lividness led to the central government enacting the Criminal Law (Amendment) Act—the Nirbhaya Act—which came into effect on February 3, 2013, two months after Nirbhaya’s passing.
The new law instituted significant changes in legislation on anti-women offences. It broadened the definition of rape, expanding it from forced penile insertion to penetration by anything wielded by the attacker into any orifice. It increased the age of consent to 18. It also protracted the period of imprisonment and introduced the possibility of capital punishment should a sexual transgression lead to death.
A little more than 12 years later, this August 9, Abhaya, a postgraduate trainee doctor at R G Kar Medical College and Hospital in Kolkata, was found raped and murdered with extreme violence. Protests—led by junior doctors at the 26 state-run hospitals-cum-medical colleges in Bengal—have been roiling Kolkata since, putting the state government on the backfoot and inviting suo motu censure from the Supreme Court. Less than a month after Abhaya’s murder, the Bengal assembly, reduced to flatfooted anxiety by popular birse, passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024 with surprising unanimity even from the opposition benches.
The Nirbhaya Act did not begin as an act of parliament, whose imprimatur it gained after it had been promulgated as an ordinance by the then president Pranab Mukherjee. The Aparajita Bill also needs presidential assent to be enacted. Perhaps a signature of both the earlier law and the proposed one is that neither went through the necessary filter of being debated threadbare in legislatures.
Consequently, the Nirbhaya Act is still receiving flak. And the Aparajita Bill has already magnetised widespread criticism, not so much from the general public (which is demanding a quicksilver execution of the single perpetrator in custody), but from legal eagles and critics of laws created by reflex political judgement, especially when they are populist and not meliorist.
Separated by more than a decade of increasing numbers and brutality of sexual assaults on women, the criticisms of both the laws read much like products of the same template: that socially unconsidered laws motivated by concerns more crowd-pleasing than genuinely justiciable eventually unravel and even boomerang.
A little more than two weeks after the Nirbhaya Act was rolled out, women’s groups got together at Delhi’s Jantar Mantar to protest what they saw as both its weak and its excessive provisions. A whole raft of issues was highlighted from the new definition of gender neutrality of rape, the sanction required if military personnel were accused, and the recognition of marital rape to the need for government permission to pursue rape investigations against public servants.
There were plentiful international studies, legal and sociological, that had established that harsher punition did not reduce the incidence of any crime, and actually escalated rape into rape-and-murder. Critics of the Nirbhaya Act were all too aware that the law could enkindle more sexual hyperviolence and goad a retreat from actionable punishment. Kneejerk or defenceless retribution written into law has often meant that judges have been unwilling to throw the full book at a perpetrator. Punishments have been eased, prosecutors under-considered, the defence allowed more latitude. This taut tensionality between the letter of the law and the spirit of justice has often meant that both have lost their sheen.
Data supports this contention. The National Crime Records Bureau (NCRB) showed that in the six years between 2012 and 2018, rape cases increased by 34 percent. The figures have stayed high despite the escalation of penalties, including a minimum sentence of 10 years with possible life imprisonment, and the death penalty for a victim younger than 12 years.
Despite the stringency in law, in 2018-22, according to the NCRB, conviction rates for rape were at 27-28 percent. In contrast, in the UK, with its less retributive judgmentalism and more correctionality, the conviction rate for rape was 60.2 percent in 2023 and 63.5 percent in 2022.
With the cautioning of the Nirbhaya Act behind us, it is distressing to see the political establishment unchanged in its populistic viscerality. The Aparajita Bill is being critiqued for going one further than the Nirbhaya Act in mandating the death penalty for convicts of rape were the victim to die or be left vegetative. This is the only law in the country that makes the death penalty compulsory for a particular crime. And it is illegal. The bill specifies life imprisonment without parole for gang-rapists, with the option of capital punishment, replacing the earlier punishment of 20 years with the possibility of life imprisonment. Critics say it will drive rapists to kill their victims rather than leave them as witnesses. It will also predispose judges to be less than optimally punitory, because the vast majority of judges hew to life.
Politics, it is said, is both the creator and the death of law; and law is the enforcer of political propriety. The Nirbhaya Act and the Aparajita Bill have put this wisdom under strain.
(Views are personal)
Kajal Basu | Veteran journalist