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Tough anti-rape laws invariably have a political overhang. Take Andhra Pradesh’s Disha bills. Passed by the assembly in December 2019, they amended the Indian Penal Code (IPC) and the Code of Criminal Procedure (CRPC) for the state to enforce the death penalty on rapists. The legislations came after a 26-year-old veterinary doctor was gang-raped and murdered in Shamshabad, Hyderabad the previous month. All four persons arrested for the crime were shot dead in a police encounter on December 6 that year. Case closed, end of the story, trigger-happy sections of the police and the establishment might have thought but it roiled the nation enough to prod the then ruling party to pass the Disha bills.
Two years later, the Maharashtra legislature followed in Andhra's footsteps to introduce the Shakti Criminal Laws (Maharashtra Amendment) Bill. They too had the provision of death penalty in rape cases and reduced timelines for the probe and trial. The legislations came in the wake of the gang rape and murder of a 15-year-old Maratha girl in Kopardi village of Ahmednagar district. The dastardly crime in 2016 left the Maratha community furious. The Shakti bill came over five years later to address that rage. Demands for Maratha quota picking up pace were a subsequent manifestation of the community’s collective anger.
Mamata’s self-goal
The recent Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, falls into a similar pattern. Passed unanimously by the West Bengal assembly on September 3 this year, it seeks capital punishment for rape convicts if their actions result in the victim's death or leave her in a vegetative state. It also prescribes life sentence without parole for other perpetrators. The legislation was hurriedly pushed through to take the sting out of the ongoing protests against the rape-murder of a 31-year-old trainee postgraduate doctor at Kolkata's RG Kar Medical College and Hospital on August 9.
The legislation allegedly came into play to shield Chief Minister Mamata Banerjee, who was in the eye of a storm as RG Kar was run by her chosen principal, Dr Sandip Ghosh. Hours after Ghosh resigned following a national uproar, Mamata committed a rare political blunder of appointing him principal of another medical college instead of letting matters cool.
In the public eye, the slip up made her equally responsible as Ghosh for all his omissions and commissions while at RG Kar. As a result, the Aparajita bill hasn't given her respite, as the ceasework agitation of junior doctors across the state, demanding justice for the victim, continues to build momentum.
"We wanted the Centre to amend its existing laws and include stricter clauses to ensure exemplary punishment for perpetrators and quicker justice for victims. They showed no enthusiasm for it. That's why we made the move first. This Bill, once enacted, can serve as a model for the rest of the country," Mamata said in the assembly during the debate on the bill.
Union minister Shivraj Singh Chouhan gave it back to her, describing the legislation as a diversionary tactic and wondering if Trinamool Congress leader Shahjahan Sheikh, the main accused in the Sandeshkhali sexual abuse case, would be awarded death penalty under the new law.
Political sparring apart, capital punishment for rape made its entry into the IPC a year after the brutal gang rape and murder of a woman on a moving bus in Delhi on December 16, 2012 shook the collective conscience of the nation. Parliament passed the Criminal Law (Amendment) Act, 2013 to allow death penalty in rape cases where the accompanying brutality leads to death or leaves the victim in a persistent vegetative state.
Laws dealing with rape were further strengthened in the Bharatiya Nyaya Sanhita (BNS) that replaced the IPC late last year. Parallelly, the revamped Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) replaced the CrPC and Indian Evidence Act, respectively.
Concurrent list
However, the Aparajita bill amended the BNS, the BNSS and the Protection of Children from Sexual Offences Act (POCSO Act). Article 254(2) of the Constitution permits a state legislature to pass a law that contradicts a central law on a matter in the concurrent list, if it subsequently receives Presidential assent.
"While the Constitution allows the legislative assembly to legislate on criminal matters, existing laws, such as BNS Sections 64, 65, and 66 already address the crime of rape. The Aparajita Act appears to be a reactionary measure driven by public outcry, potentially overlooking established principles of criminal law and the norms of a fair trial," said Dr L S Chaudhary, advocate and member of the Delhi University Executive Council.
"By resorting to emotionally charged but ultimately superficial solutions, politicians satisfy the emotional ledger of justice in the short term and avoid the evidence-based approaches necessary for addressing the deeper, systemic issues that perpetuate violence against women," opines Jehosh Paul, a lawyer.
Presidential assent
Just as the Disha and Shakti laws landed in Rashtrapati Bhavan for Presidential consideration, West Bengal Governor C V Ananda Bose on Friday referred the anti-rape Aparajita bill upstairs to President Droupadi Murmu. All three are yet to get Presidential approval. Governor Bose, however, did not give the Mamata government any wriggle room, saying people cannot wait till the bill is implemented. "They want justice and justice should be given to them within the framework of the existing law. The state government should act effectively, people should get justice."
Life and death
Perceptions differ on the efficacy of death penalty for the offence of rape. The Justice Verma Committee that was formed in 2013 in the aftermath of the Nirbhaya outrage, felt that the punishment should be proportionate, as it was possible to rehabilitate the survivor. The panel recommended enhanced punishment up to life imprisonment for rape, but not death penalty.
The Law Commission in 2015 observed that courts have not awarded the death penalty in certain heinous cases, if there were mitigating factors such as the young age of the accused and the possibility for reform.
Those in favour of capital punishment for rape argue that it serves as a deterrent to reduce its incidence. “However, studies have found no significant correlation between the imposition of the death penalty and a reduction in crime rates. Despite having stringent laws like the POCSO Act and the Criminal Law (Amendment) Acts of 2013 and 2018, significant issues exist in their implementation,” says Supreme Court advocate Shoumendu Mukherjee.
According to the National Crime Records Bureau’s (NCRB) 2020 report, over 85% of rape cases are still pending in the courts, contributing to delayed justice, thus undermining the deterrent effect of harsh punishments, he adds.
After death penalty was introduced for certain rape cases in 2013, the number of reported rape cases in India recorded by the NCRB increased from 24,923 in 2012 to a staggering 33,356 in 2018. “This suggests that introducing the death penalty did not result in an immediate deterrent effect,” Mukherjee points out.
Another metric to gauge the incidence of heinous crimes is the performance of Fast Track Special Courts (FTSC). Unfortunately, many cases languish due to backlog and slow legal processes. Over 2.43 lakh POCSO cases were pending trial in FTSCs as of January 31, 2023.
In India, states that have high rates of death sentences do not necessarily see lower crime rates. For example, Madhya Pradesh had the highest number of death sentences awarded between 2016-2020 but remained one of the states with the highest number of rape cases in 2019. In sum, while the death penalty exists in Indian law, facts suggest that the real deterrent lies in effective enforcement, timely trials, and high conviction rates, which current laws struggle to deliver, says Mukherjee.
The other argument for the death penalty among its proponents is that it serves as retributive justice for the victims.
“The existence of capital punishment does not seem to effectively deter crime, as individuals committing offenses may not consider the repercussions during the commission of such acts,” feels advocate Kashish Seth.
"Even in countries where the death penalty is prevalent, it does not necessarily mean a lower crime rate. A degree of certainty to be punished is a greater deterrent, that is...how likely the perpetrators will be caught and punished. The Bengal bill may seem a good step forward on paper, but without a degree of certainty of being caught and punished, it may not work out in practice," said advocate Rishabh Gupta.
Besides, the Supreme Court has been very conservative in cases of death penalty, and allowed it only in the rarest of the cases where the nature of crime is extremely gruesome. While the new law mandates death penalty in certain cases, the top court could partially strike down some provisions if it finds they infringe Article 21 of the Constitution, he opines.
Former Additional Solicitor General and Constitutional expert, K C Kaushik, says, "The Aparajita bill may be a knee-jerk reaction. For heinous offences, the death penalty must exist. However, what is a rarest of rare crime for one judge might not be so for another. Offenders of such crimes must be given the strictest punishment, Aparajita or not.”
Quality of probe
Noted human rights activist and Supreme Court lawyer, Radhakanta Tripathy, said, the Bengal law in itself can't enhance the quality of investigation. The intelligence, capabilities and integrity of the police personnel and forensics personnel are important. Public prosecutors play a vital role in ensuring the implementation of the law's enactment in its letter and spirit. Moreover, no law can take away the provisions of pardon and commutation of sentences under Article 72 and Article 161 of the Constitution. Under these Articles, the President and Governor can grant pardon, Tripathy says.
Pointing to the tight timelines, advocate Gupta worries that “it could result in a rush and less thorough probe, which would be insufficient to hold the perpetrator guilty.”
Human rights lawyer Vineet Jindal says India already has laws that can adequately address all types of offenses. How the Bengal law would work remains to be seen as "we are well aware of the ground realities faced by investigative agencies and the judiciary, which are often constrained by limited manpower, technology, and infrastructure."
Advocate Siddharth Malkania warns against tough laws ending up as persecution of the accused rather than prosecution. "The accused might rot in jail for a longer period because he would not be granted bail even after a considerable period of incarceration, resulting in persecution rather than prosecution. Later, he may be acquitted if there is not enough evidence," he says. Quick collection of evidence and on-time investigation is needed, he adds.
The Disha Bill
Prescribed death penalty for rape, including against a minor below 16 years of age, gang rape and for repeat offenders.
Sought to create special police teams and exclusive special courts in every district to investigate and hear cases of crimes against women. It also shortened timelines for investigating and hearing such cases.
Proposed creating a Women and Children Offenders Registry in which full details of offenders against women would be maintained
The SHAKTI Bill
Introducee death penalty for offences such as causing grievous hurt by use of acid, rape, and gang rape. Applies to heinous crimes where there is conclusive evidence, and the circumstances warrant exemplary punishment. Under IPC, the maximum punishment for these offences was life imprisonment, along with a fine.
Increased the term of imprisonment and fine for certain offences under the IPC and the POCSO Act
Enhanced punishments in Aparajita bill
The Aparajita bill enhances punishment for the offence of rape (BNS Section 64) to life imprisonment for the remainder of the convict’s natural life or death, with a penalty. The BNS prescribes rigorous imprisonment of at least 10 years, which may extend to life for this offence.
If the victim dies or is left in a vegetative state, the Bengal bill makes death penalty mandatory along with a fine. In BNS Section 66, the punishment prescribed for this offence is rigorous imprisonment for at least 20 years, but which may extend to imprisonment for the remainder of one’s natural life, or death.
For gang-rape, the bill prescribes life imprisonment for the remainder of the convict’s life or the death penalty along with a fine. The punishment under Section 70(1) of the BNS is imprisonment for at least 20 years, which may extend to life imprisonment for the remainder of one’s life.
The bill prescribes imprisonment of 3-5 years and a fine for disclosing a rape victim’s identity - up from two years in jail under BNS Section 72.
The bill says rape investigations should be completed within 21 days (instead of the two months provided for under the Section 193 of the BNSS). This timeline may be extended at the most by 15 days.
The bill seeks to amend BNSS Section 346(1) so that inquiry or trial of such cases is completed within 30 days from the date of filing the chargesheet.
The bill proposes to amend the BNSS to establish special courts under a new Section 29A. These courts would be tasked with ensuring the expeditious completion of inquiries or trials in rape and related cases.
Under the newly proposed Section 29B, rape trials would be conducted by a Special Public Prosecutor with at least seven years of practice. The appointment would be appointed by government notification.
A new Section 29C seeks to create a special task force, called the Aparajita Task Force, at the district level, headed by the Deputy Superintendent of Police, to handle rape cases. Investigations under the task force would, as far as possible, be conducted by a female police officer.
The bill specifies that any fine imposed must be fair and reasonable to cover the medical expenses and rehabilitation of the victim or their next of kin, if applicable, as determined by a special court
Rarest of rare doctrine
If the Aprajita bill is challenged in the Supreme Court, it would scrutinise it on several grounds, particularly its compliance with the Constitution, and established judicial precedents. The court would examine whether its provisions imposing capital punishment in various cases, particularly rape, align with the principles of justice, proportionality, and the “rarest of rare” doctrine. This approach limits the over-expansion of capital punishment and ensures it is applied only in cases that truly shock the conscience of society, says Shoumendu Mukherjee, SC advocate
For example, in the Bachan Singh v. Punjab (1980) case, the SC upheld the constitutionality of the death penalty under Section 302 of the IPC. However, it laid down the principle that the death penalty should only be awarded in the “rarest of rare” cases
In the Nirbhaya case, the SC upheld the death penalty for the four convicts involved in the gang rape and murder. The court cited the brutality of the crime and its profound impact on society
In Manoharan (2020), the SC upheld the death penalty for the accused involved in the gang rape and murder of a 10-year-old girl and her brother. It held that the rarest of rare doctrine applied due to the brutal, horrifying nature of the crime
Source: PRS