On Tuesday (3rd September), the West Bengal assembly passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024 with a voice note, at a time when the Mamata Banerjee government’s back is against the wall on women’s safety and law and order issue. The bill has been passed as a direct reaction to the horrific rape and murder of a trainee doctor at RG Kar Medical College and Hospital in Kolkata.
The law aims to create a safer environment for women and children in the state, reinforcing its commitment to protecting fundamental rights and ensuring that heinous acts of rape and sexual offences are met with the full force of the law. The Aparajita Woman and Child Bill, 2024, proposes amendments to several national laws, including the recently passed Bharatiya Nyay Sanhita 2023, the Bharatiya Nagarik Suraksha Sanhita 2023, and the Protection of Children from Sexual Offences Act 2012.
Now, it has come to light that the anti-rape legislation is riddled with lacunas that could render it unconstitutional. The seeming inevitability of it getting struck down in a court of law alludes that it could merely be an act to pander to the gallery rather than a true pursuit to seek Justice for women and set a deterrence against heinous crimes.
The TMC government’s anti-rape legislation has several legal lacunas and bottlenecks, and the below-mentioned past precedences indicate that it is likely that it could be struck down in court for being ultra vires with Articles 14 and 21 of the Indian constitution among other laws –
One of the most significant provisions of the proposed Bill is the introduction of capital punishment for individuals convicted of rape in cases where the crime results in the death of the victim or causes the victim to enter a vegetative state. In such cases, the new law has the provision of only the death penalty along with a fine, and there is no provision for a lesser punishment like a jail term. And this is the most problematic provision in the bill.
As per the content of the bill, there is no provision for the courts to award a jail term, even a life sentence, to a convict in case the injuries inflicted by the convict result in the death of the victim or the victim ends in a vegetative state. Simply put, as per this legislation, courts will be compelled to either mandatorily pronounce a death sentence and impose fines on convicts, or they will have to let the convict scot-free by just imposing a monetary fine.
As per APARAJITA Women & Child (West Bengal Criminal Laws Amendment) Bill 2024, a man who commits rape and murder can be punished with death and fine only.
— CiteCase 🇮🇳 (@CiteCase) September 3, 2024
No option of life imprisonment !
What are your views on this? Legal points only please !
Pic Source: @iindrojit https://t.co/Y9ddbr0ScM pic.twitter.com/zTjcecvngD
It is important to note that the Supreme Court, on multiple occasions, has reiterated that the death penalty can only be awarded to a convict in the “rarest of the rare” cases. So, if that particular heinous rape fails the “rarest of the rare” test, the court will have to set the convict free with only a fine as there is no provision for a jail term under the West Bengal anti-rape legislation.
Pertinently, the Rarest of rare was defined by SC in the Bachan Singh v. State of Punjab case. The judgement underscored the judiciary’s responsibility to ensure fairness and justice while pronouncing sentencing. It mandated judges to provide written reasons for imposing the death penalty, thus introducing a higher level of accountability and transparency in the judicial process.
Nonetheless, there are at least three landmark judgements in which the apex court has categorically held that “mandatory death sentences in legislation are unconstitutional” and such provisions/laws had been struck down for being ultra vires with Articles 14 and 21. State of Punjab vs Dalbir Singh – 2012 is the recent landmark judgement in this regard in which the court upheld this ruling.
The Aparajita Bill is unconstitutional.
— Utkarsh K. Shahi 🇮🇳 (@ukshahi) September 3, 2024
In three different landmark judgments (the last one being State of Punjab vs Dalbir Singh – 2012), the Supreme Court has invariably held that mandatory death sentences are unconstitutional.
The WB CM just wants to play to the gallery here… https://t.co/9nZPlHiATn
State of Punjab vs Dalbir Singh case
First things first, in 2006, Section 27(3) of the Arms Act, 1959 was challenged in the Supreme Court and that case has been dubbed as State of Punjab vs. Dalbir Singh. The Supreme Court delivered its verdict on this issue in 2012.
As per the content of the law, Section 7 of the Act forbids the manufacture, sale, and use of prohibited arms and ammunition unless it has been specially authorised by the central government. Section 27(3) prescribed that any contravention of Section 7 that results in the death of any person ‘shall be punishable with death’. It was a “mandatory death” provision, as there was no provision for any other punishment.
Now, in its landmark judgement, the Supreme Court held that section 27(3) of the Arms Act that mandatory death penalty was “unconstitutional”. The court held that Section 27(3) is unconstitutional as it deprived the judiciary of discharging its duty of judicial review by barring it from using the power of discretion in the sentencing procedure, the judgement stated.
The bench also quoted relevant sections of an earlier judgment delivered in 1983, in Mithu vs. State of Punjab. Therefore, the court pronounced that Section 27 (3) of the Arms Act, of 1959 is unconstitutional.
Mithu V. State of Punjab
Section 303 of the Indian Penal Code (IPC) also made it mandatory for the courts to award the death penalty to a person who committed murder while undergoing imprisonment for life. In this case, the court had looked into the constitutional validity of the mandatory death sentence. The top court held that it was unconstitutional and it was struck down by the Supreme Court stating that it violated Articles 14 and 21 of the Constitution of India.
The final verdict ruled that a provision of law which deprives the Court of its discretion, and disregards the circumstances in which the offence was committed, can only be regarded as ‘harsh, unjust and unfair’.
The judgment emphasised that the concept of a ‘just, fair and reasonable’ law has been read into the guarantees under Article 14 (Equality before law) and Article 21 (Protection of life and personal liberty) of the Constitution. A law that imposes an irreversible penalty such as death is ‘repugnant to the concept of right and reason’, the court held.
Rule of Repugnancy
Additionally, the West Bengal anti-rape bill also suffers from the Rule of Repugnancy under Article 254 as the criminal laws passed by the Parliament – Bharatiya Nyay Sanhita also has laws in this regard.
The Rule of Repugnancy states that if the state assembly and the Parliament (representing the country), make contradictory laws on an issue that is mentioned in the concurrent list, the central law will prevail. In the areas of divergence, the central law will eclipse the state law. This means that if both the Centre and a state assembly have drafted a law on the same issue, then all those provisions that are against or different from the Central law will be repugnant and will not come into effect. In the case of anti-rape legislation, the provisions of the BNS will prevail.
Therefore, the Aparajita Woman and Child Bill will be struck down by the Supreme Court as it has a provision for the mandatory death penalty, a provision ruled unconstitutional by the apex court several times in the past. Even if not the whole law, the mandatory death penalty will be struck down, just like the same provision in Arms Act and IPC were removed by the Supreme Court.
Apart from the glaring lacunas in the hushed-up legislation as a face saviour tactic, the Mamata Banerjee court has been failing short of ensuring speedy Justice in POCSO cases. It has been caught wanted in establishing and operationalising earmarked Fast Track Special Courts (FTSCs) for expeditious trial and disposal of pending rape and POCSO Act cases in the state of West Bengal.
Thanks to Hon'ble Union Minister; Shri @KirenRijiju Ji for exposing Mamata Banerjee and her Govt.
— Suvendu Adhikari (@SuvenduWB) September 4, 2024
This letter of 2021, sent by the then Union Minister of Law & Justice; Shri Kiren Rijiju Ji, highlighted the lackluster attitude of the WB Govt regarding establishing Fast Track… https://t.co/WdoOuQBHYj pic.twitter.com/JmmJL0JNc4
The Centre has reprimanded her government for several years over this issue, however, in a watershed moment for West Bengal, as the Maa, Mati, and Manush have taken to the streets against Mamata Banerjee, she has responded with this short-sighted legislation.
Is this Mamata Banerjee’s moment of reckoning or will be end up as a mere grandstanding opportunity for the TMC Supremo?
TMC Supremo and West Bengal CM Mamata Banerjee who made ‘Maa, Mati and Manush’ her aggressive political plank, has been facing the heat for being caught wanting on the front of law and order, especially on crimes against women. Her administration received a severe dressing down from the courts for the shoddy investigation in the RG Kar Hospital rape-murder case and backing the tainted Principal, Sandip Ghosh. Banerjee who also holds the concerned portfolios of Health Ministry and Home Ministry, initially responded to the public movement by launching a protest march to seek Justice for the deceased trainee doctor.
Hoping that the protest march would quell the public movement which also involved a section of his voter base (Mahila among others), resulted in ridicule for the TMC government. With her back to the wall, the Mamata Banerjee government finally passed this much-hyped Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024 from the West Bengal assembly yesterday.
However, the glaring shortfall and the past precedents point out that it is highly likely to be found ultra vires and illegal, the eventuality of it getting struck down in a court of law could end up as a grandstanding opportunity for the TMC leader to play the victim as well as the messiah for the aggrieved women. In that seemingly inevitable scenario, the TMC Supremo could cry foul that her tough stance on law and order, especially for the safety of women was annulled by the courts for which the opposition alliance will hold PM Modi in the cross-hair.
The opposition which has been gunning virtually for entrenching distrust against all premier democratic institutions has already been crying hoarse on probing agencies, media, election bodies, the financial world, the judiciary, etc accusing them of acting as a political tool for PM Modi. However, in petty politics, the new legislation seems to fail to act as a true pursuit to seek Justice for women and set a deterrence against heinous crimes.
