The Bengal Bill, overlap with central laws, and legal road ahead

The brutal rape and murder of a 31-year-old doctor at the state-run RG Kar Medical College and Hospital in Kolkata has sparked widespread outrage. In response, the Mamata Banerjee-led West Bengal government on Tuesday introduced and passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024. The bill seeks to impose the death penalty for rape convicts whose actions lead to the victim’s death or leave her in a vegetative state, while also introducing death as an alternative punishment for all categories of rape in the state-specific penal code.
During the assembly debate, Mamata hailed the bill as “historic” and “model,” dedicating it to the memory of the young doctor. She emphasised that the bill aims to fill “gaps” in existing central legislation, urging for prompt assent from the governor, CV Ananda Bose, and eventually, the President.
The bill proposes several amendments to the Bharatiya Nyay Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Protection of Children from Sexual Offences (Pocso) Act, 2012. It also introduces non-bailable arrests in rape cases, the establishment of fast-track courts, and harsher penalties for disclosing a rape survivor’s identity.
ALSO READ- Kolkata rape-murder: Mamata Banerjee demands PM Modi, Amit Shah’s resignation as Bengal assembly passes ‘Aparajita’ bill
Given the long history of tussle between the Mamata government and the Centre, it is possible for the new bill to become yet another flashpoint for political conflict. The legislative process for state laws that amend central legislation is fraught with challenges, including potential delays and political disagreements. Any objections raised by the Centre in this case could be framed as attempts to undermine the state’s efforts to protect women, potentially leading to a political slugfest.
While the fate of the Aparajita Bill will depend not only on its legal merits but also on the broader political dynamics between the state and central governments, it is imperative to understand the intricacies of criminal law, the legislative process and the legal precedents for a comprehensive analysis of the bill. This context is crucial to fully appreciate the significance of the Aparajita Bill and its potential impact on both the legal landscape and the political dynamics in West Bengal.
A case of legislative stagnation in Andhra Pradesh and Maharashtra The Aparajita Bill is not the first state-level attempt to impose stricter punishments for crimes against women. In December 2019, the Andhra Pradesh legislative assembly passed the Disha Bill, 2019, named after a veterinary doctor who was brutally raped and murdered in Hyderabad. The Act provides for the death penalty for offences such as rape and gang rape and mandates the completion of investigations within seven days and trials within 14 days from the date of filing the charge sheet. The bill also proposed the establishment of special courts for the speedy trial of such cases.
Similarly, in December 2021, Maharashtra passed the Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020, which introduced the death penalty for certain offences such as causing grievous hurt by acid attacks, rape, and gang rape. The bill also amended the Pocso Act to provide for the death penalty for penetrative sexual assault of a child below 16 years of age. Both the Andhra Pradesh and Maharashtra bills were sent to the President for approval but have since remained in legislative limbo.
The central government raised several objections to these bills, questioning provisions such as the use of specific names for the legislation, the timeline for investigations, and the overlap with existing central laws such as the Indian Penal Code (now replaced by BNS), the Code of Criminal Procedure (now replaced by BNSS), and the Pocso Act. Despite periodic queries and discussions, these bills have yet to receive the President’s assent, rendering them non-functional. The delays and objections reflect the complexities and challenges involved in enacting state laws that seek to amend central legislation.
ALSO READ- Probe sought into complainant’s death in Pocso case against Yediyurappa
The road to Presidential assentCriminal law in India falls under the Concurrent List of the Constitution, meaning both central and state legislatures have the authority to enact laws on the subject. However, in cases where state laws conflict with central legislation, the central law takes precedence. To resolve such conflicts, state laws require the President’s assent to become operational within that state.
The process of obtaining the President’s assent is intricate and often politically charged. Once a state bill is passed by the state legislature, it is sent to the governor, who may refer it to the President if it conflicts with central law or when the governor finds the issues involved significant enough to warrant the President’s intervention. The President, advised by the central government, can either grant assent, withhold assent, or return the bill for reconsideration. If the President withholds assent, the bill cannot become law. This process has led to the stalling of several state bills, including those from Andhra Pradesh and Maharashtra, as the central government raised objections or sought clarifications.
The West Bengal government’s Aparajita Bill now faces a similar path. The bill, which seeks to amend the newly introduced central laws such as BNS, is likely to be scrutinised by the central government. Any objections or delays in the President’s assent could lead to yet another political confrontation between the Mamata government and the Centre, potentially sidelining the crucial issue of women’s safety.
ALSO READ- ‘Murdered Kolkata doctor knew too much, was silenced’, says top Bengal doctor
Legal precedents, mandatory death sentence and right to fair trialThe Aparajita Bill seeks to amend BNS to hold that leaving a rape survivor in a persistent vegetative state will be punished with “death and fine”, which can be interpreted as the proposed law providing for mandatory death penalty in such cases. This provision is likely to face significant legal challenges.
The Supreme Court has consistently held that mandatory death sentences violate the principles of justice and individual rights enshrined in the Constitution. In Mithu vs State of Punjab (1983), the apex court struck down Section 303 of the Indian Penal Code, which mandated the death penalty for life convicts who commit murder, holding that the mandatory imposition of the death penalty is arbitrary and unconstitutional as it deprives the judiciary of its discretion to consider the individual circumstances of each case.
Further, the bill’s emphasis on swift justice as it mandates that rape case investigations be completed within 21 days and trials within 30 days. These timelines raise important questions about the right to a fair trial. The Supreme Court of India has consistently held that the right to a fair trial is a fundamental right under Article 21 of the Constitution, which guarantees the right to life and personal liberty.
In the landmark case of Kartar Singh vs State of Punjab (1994), the Supreme Court emphasised that the right to a speedy trial is an essential component of the right to life and liberty. However, the court has also warned against sacrificing the fairness of a trial in the pursuit of speed.
Similarly, in Zahira Habibullah Sheikh vs State of Gujarat (2004), the top court held that a trial must be conducted in an impartial atmosphere and that justice should not only be done but should also be seen to be done.
The doctrine of proportionality, established in the 2017 right to privacy case (KS Puttaswamy vs Union of India), further underscored that any law restricting fundamental rights must be proportionate to the objective it seeks to achieve. This means that while the state has a legitimate interest in preventing sexual violence, the measures it adopts must not disproportionately infringe on the rights of the accused.
ALSO READ- ‘Will Shahjahan be hanged?’: Shivraj Chouhan to Mamata Banerjee on Bengal’s anti-rape bill
The Aparajita Bill’s provisions for expedited investigations and trials may be seen as compromising the accused’s right to a fair trial, particularly the right to adequate time to prepare a defence. Critics argue that reducing the investigation and trial periods to 21 and 30 days, respectively, could lead to hurried proceedings, undermining the thoroughness and impartiality required in such serious cases. Moreover, the absence of provisions to ensure that fair investigation practices are not compromised during this shortened time frame could result in miscarriages of justice.
The Supreme Court, in cases such as Vinay Tyagi vs Irshad Ali (2012), has noted the importance of a fair and proper investigation as a vital aspect of criminal jurisprudence. The court held that an investigation must be unbiased, honest and in accordance with the law, with the sole purpose of uncovering the truth. The Aparajita Bill’s stringent timelines may be at odds with this principle, leading to concerns about the potential for flawed investigations and wrongful convictions.
The Aparajita Women and Child Bill, 2024, introduced by the West Bengal government, is a strong legislative move in response to a horrific crime. However, the bill’s provisions for expedited investigations and trials, while intended to deliver swift justice, must be carefully balanced against the fundamental rights of the accused, as upheld by the Supreme Court in a line of judgments.
The stringency of legal provisions, while significant, is not the sole determinant of a state’s ability to uphold law and order. The real measure of a state’s commitment to justice lies in the effective and consistent implementation of its laws. No matter how stringent a law may be, its impact is diminished if it is not properly enforced. This principle is crucial in understanding the broader discourse around legal reforms, especially those aimed at enhancing protections for vulnerable groups such as women.
The Supreme Court of India has repeatedly underlined the importance of proper implementation of laws over mere legislative stringency. In DK Basu vs State of West Bengal (1997), the top court highlighted that the efficacy of legal provisions hinges on their proper enforcement by the authorities. It noted that even the most robust laws are rendered ineffective without diligent and sincere implementation by the state machinery.
Even as the bill’s fate remains uncertain, the debates it sparks will undoubtedly have far-reaching implications for the legal landscape and the protection of women in West Bengal and beyond.