The West Bengal Assembly today passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024 (hereinafter referred to as the “Bill”), during a two-day special session of the Assembly, which was summoned on Monday amidst the ongoing outrage over the rape-murder of a doctor at the state-run Medical College and Hospital last month. Notably, the Bill was passed with the full support of the Opposition and will come into effect on 5th September 2024.
The Bill seeks to amend the Bhartiya Nyaya Sanhita 2023, Bhartiya Nagrik Suraksha Sanhita 2023, and the Protection of Children from Sexual Offences Act (POCSO) 2002. The Statement of Objects and Reasons of the Bill are as follows:
1. The instant Bill aims to create a safer environment for women and children in the State of West Bengal by amending and proposing new provisions related to the offence of rape and sexual offences against children. It is a testament of the State's unwavering commitment to uphold the fundamental rights of its citizens, particularly women and children, and to ensure that heinous acts of rape and sexual offences against children are met with the full force of the law.
2. The State Government of West Bengal perceives the egregious act of rape of women and sexual offences against children, regardless of their age, as the utmost violation of their dignity, irrespective of the status of the perpetrator vis-à-vis the victim or the condition of the victim caused by such rape of the woman and sexual offence against the child.
3. Keeping in mind the above considerations, the State Government of West Bengal firmly believes that by maximising the punishment of the act of rape of women and sexual offences against children, this Bill shall deter such deplorable acts and ensure that perpetrators face exemplary and severe consequences for their crimes.
4. Further, the Bill seeks to introduce robust provisions for investigation and adjudication aimed at punishing acts of rape of women and sexual offences against children. To expedite investigations and ensure swift justice for victims, this Bill establishes a dedicated special court and investigation team. These specialized units will be equipped with the necessary resources and expertise to handle cases of rape of women and sexual offences against children efficiently, effectively and timely, thereby minimizing the trauma experienced by victims and their families.
5. Accordingly, the Government has decided to amend the provisions that govern the offence of rape.
6. The Bill seeks to give effect to the above objectives.
7. There is no financial implication involved in giving effect to the provisions of the Bill.
The author opines that this proposed amendment is unlikely to achieve the objectives mentioned in the Statement of Objects and Reasons, as the Bill neither passes constitutional muster nor has it been legally scrutinized before being placed before the Assembly. It appears more as a political gimmick rather than a genuine effort to achieve the desired objectives.
A state, irrespective of the ruling political party, cannot take decisions emotionally or under any political compulsion. The actions and decisions of a state have wide repercussions; hence, every step must be taken carefully and cautiously.
The major amendment proposed by the Bill is to increase the punishment for rape “from a minimum of ten years to imprisonment for life, and a fine” to "rigorous imprisonment for life, which shall mean rigorous imprisonment for the remainder of that person's natural life and a fine, or death." It also inserts a proviso to determine the applicable fine, which shall be fair and reasonable in order to cover the medical expenses and rehabilitation of the victim.
The Bill further amends the prescribed punishment for rape causing death or resulting in a persistent vegetative state of the victim, from "rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or death," to "death." In layman's terms, any convict of rape causing death would certainly be punished with death. Whether this amendment passes constitutional validity will be discussed later in this article.
Furthermore, the prescribed punishment for gang rape, as mentioned in the BNS 2023, has also been increased from "rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and a fine," to "rigorous imprisonment for life, which shall mean rigorous imprisonment for the remainder of that person's natural life and a fine, or death.” In other words, the minimum punishment for gang rape in West Bengal is rigorous imprisonment for the entire natural life of the convict.
The Bill also enhances the punishment for acid attack victims by amending the prescribed punishment from “imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and a fine," to “rigorous imprisonment for life, which shall mean rigorous imprisonment for the remainder of that person's natural life and a fine” in cases of permanent or partial damage.
The Bill proposes to constitute a Special Court for the trial of the offence of rape in every district, having the status of a Sessions Court. A special investigating team, termed the “Aparajita Task Force,” shall also be created for the purpose of investigating these offences, with a mandate of 21 days (extendable by 15 more days) for completing the investigation.
The Constitutional Validity of Clause 6 of the Bill
Clause 6 of the Bill prescribes only “death” as a punishment for “rape resulting in the murder of the victim.” There is no discretion for the courts; only death is mandated. The court has no option to impose any other sentence, regardless of the motivation of the crime or the circumstances in which it was committed. Any convict for rape causing murder will face execution, as per the amendment. However, the question arises: is this even constitutional? Has the draftsman examined this before including it in the Bill? Did the lawmakers discuss this provision before passing the Bill?
It must be noted that the Hon’ble Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, upheld the constitutionality of the death sentence, but only under the condition that it could be imposed only in the “rarest of rare” cases. Since then, life imprisonment has been the rule and the death penalty the exception. The Hon’ble Supreme Court in Machhi Singh v. State of Punjab, (1983) 3 SCC 470, further discussed how to determine whether a case falls under the rarest of rare category, as follows:
31. Having dealt with the appeals on merits from the standpoint of proof of guilt and validity or otherwise of the order of conviction, we now come face to face with the problem indicated when the curtain was lifted, namely, the application of the rarest-of-rare-cases rule to the facts of individual cases in the context of the relevant guidelines. Some reflections on the question of death penalty may appropriately be made before we tackle the said question in the perspective of the present group of appeals.
32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
Whether all these factors were considered before incorporating the amended provision of law can only be answered by the lawmakers of the Assembly.
We must not forget that the criminal jurisprudence of our country is based on the reformative theory, not the retributive theory. The reformative theory emphasizes the rehabilitation and reform of offenders as the primary purpose of punishment, rather than retribution or deterrence.
It is further noted that a similar provision, Section 303 of the Indian Penal Code 1860 (now repealed), prescribed only a death sentence for murder committed by a life convict. This provision was struck down by the Hon’ble Supreme Court in Mithu v. State of Punjab, (1983) 2 SCC 277. The Court opined that “a standardized mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances that constitute a safe guideline for determining the question of sentence in each individual case.”
The Court further noted:
“18. It is because the death sentence has been made mandatory by Section 303 in regard to a particular class of persons that, as a necessary consequence, they are deprived of the opportunity under Section 235(2) of the Criminal Procedure Code to show cause why they should not be sentenced to death and the court is relieved from its obligation under Section 354(3) of that Code to state the special reasons for imposing the sentence of death. The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust.”
Pertinently, if the amendment is enacted, Section 258(2) of BNSS 2023 will have no applicability, as there will be no opportunity for a hearing on the sentence, removing judicial discretion.
In conclusion, the passage of the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, represents a significant legislative effort to enhance the protection of women and children in West Bengal. The Bill's intent to strengthen penalties for heinous crimes such as rape, gang rape, and acid attacks, and to establish specialized courts and investigative teams, underscores the state's commitment to addressing these grave issues with urgency and seriousness. However, while the Bill’s objectives are commendable, there are substantial concerns regarding its constitutional validity, particularly with respect to the mandatory death penalty provisions. The introduction of such rigid sentencing—mandating death without judicial discretion—raises serious questions about its alignment with established legal principles and constitutional safeguards. The Supreme Court's jurisprudence, as demonstrated in cases like Bachan Singh (supra) and Mithu (supra), emphasizes that justice must be nuanced and context-sensitive, rejecting one-size-fits-all approaches to sentencing.
The retributive nature of the proposed amendments seems to overshadow the rehabilitative philosophy underpinning our criminal justice system. By enforcing mandatory death sentences for certain crimes, the Bill may inadvertently contravene the principles of proportionality and individual assessment, potentially undermining the judicial discretion essential for delivering justice that reflects the unique circumstances of each case.
As the Bill moves forward, it is crucial for the state to address these constitutional concerns thoroughly. Ensuring that the legislative measures align with constitutional mandates and judicial precedents will be vital in achieving the intended protective goals without compromising the fundamental tenets of justice. The path forward should balance the need for stringent action against perpetrators with the commitment to uphold constitutional rights and judicial fairness, ensuring that the law serves both the cause of justice and the principles of human dignity.
Comments