Policy Perspective On The Aprajita Bill 2024

Policy Update
Arohi Sanyal

INTRODUCTION:

Rape Culture in India

The prevailing feminist narrative typically describes rape culture as the societal normalization of male aggression in sexual violence against women. This understanding has its roots in radical feminist interpretations of patriarchy from the 1970s, yet it does not adequately address the intersectional nature of sexual violence. I propose that a comprehensive analysis of rape culture must investigate additional power dynamics alongside patriarchy. An intersectional approach highlights how the myths, discourses, and practices inherent in rape culture reinforce male authority over women ( Homepage | Cambridge University Press & Assessment) .

When did India start to speak on rape?

On December 16, 2012, a 23-year-old woman and her friend were returning home after watching a movie. They boarded a bus that contained six individuals, including the driver, who subsequently subjected her to horrific acts of rape and torture. After the assault, the perpetrators discarded both women from the moving vehicle. This tragic event sent shockwaves throughout the nation, igniting widespread protests demanding justice and leading to the case being referred to as the Nirbhaya rape case (Times of India).

It is important to highlight that prior to this incident, discussions surrounding rape were largely considered taboo within society. The case compelled the government to acknowledge rape as a significant social issue that required urgent attention. A pivotal outcome of this case was the enactment of the Criminal Law Amendment Act 2013, which introduced harsher penalties for sexual offences, including rape. Despite the government’s efforts to implement stringent measures, it was not until 2020 that the convicted rapists were executed (Law.Cornell.Edu) .

Now, eleven years after the Nirbhaya incident, the nation is once again witnessing protests for justice, this time for a doctor who was brutally gang-raped and murdered in a Kolkata hospital during her working hours. As of now, no substantial action has been taken regarding this case, highlighting the sluggishness of our justice system. In response to the need for expedited handling of such sensitive cases, the West Bengal Assembly has passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, which seeks to tackle issues related to violence against women

THE APRAJITA BILL:

Overview of Scheme

The West Bengal Assembly has successfully passed the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, which is designed to combat violence against women. This bill includes stipulations for capital punishment and the most stringent penalties for acts of rape and sexual harassment .

Key Provisions of Aprajita Bill

The proposed legislation aims to amend several legal frameworks, particularly the Bharatiya Nyaya Sanhita (BNS) 2023, the Bhartiya Nagrik Suraksha Sanhita (BNSS) 2023, and the Protection of Children from Sexual Offences Act 2012 (POCSO). The central goal of this initiative is to enhance protections and provide remedies for survivors and victims of sexual offences, regardless of their age.

This Bill introduces the possibility of capital punishment for individuals convicted of rape that results in the death of the victim or leaves her in a permanent vegetative state. It also mandates a minimum sentence of ten years for rape, which increases to a minimum of twenty years for gang rape, with the potential for life imprisonment. In instances where rape leads to the death of the victim or a vegetative state, the legislation prescribes a minimum of twenty years of rigorous imprisonment, with life imprisonment or death penalty as possible outcomes.

Additionally, the Bill sets forth a structure for prompt investigations and trials, mandating that investigations be completed within 21 days of the initial report and trials within 30 days, with extensions permitted only with written justification from a senior police officer.

It also proposes the establishment of 52 special courts to facilitate the swift resolution of sexual violence cases and the creation of a specialized task force at the district level, led by a deputy superintendent of police, dedicated to investigating rape and related offences against women and children. The legislation underscores the importance of protecting victims’ identities and imposes stringent penalties on law enforcement and health officials who fail to act swiftly or compromise evidence, thereby reinforcing accountability within the judicial system.

Drawbacks of Aprajita Bill

The Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, intends to amend existing central laws, prompting significant concerns regarding its constitutional validity and the jurisdictional implications involved. According to Article 246 of the Indian Constitution, states possess the authority to legislate on matters enumerated in the State List; however, the concurrent jurisdiction over criminal laws complicates this landscape. Should the bill seek to supersede central legislation, it is imperative that it obtains the assent of the President, thereby raising questions about its enforceability.

Additionally, the bill stipulates an ambitious timeframe for completing investigations within a mere 21 days, a target that appears unrealistic given the inherent complexities associated with rape cases and the considerable backlog plaguing the legal system. Historical precedents illustrate the potential for legal challenges, as state amendments to central laws have frequently been contested in courts.

Notably, in the case of State of West Bengal v. Union of India (1964), the Supreme Court invalidated the West Bengal Land Reforms Act, 1955, due to its conflict with the central Land Acquisition Act of 1894, thereby affirming the supremacy of Parliament in legislative matters. Similarly, in KK Verma v. Union of India (1960), the Supreme Court struck down the Madhya Pradesh Agricultural Produce Markets Act, 1958, for its inconsistency with central laws. These rulings underscore the judiciary’s firm stance on maintaining the primacy of central legislation over state amendments.

Furthermore, the effective implementation of the bill may encounter significant obstacles, necessitating upgrades to law enforcement infrastructure and specialized training for police and judicial officers. The Indian judiciary is already burdened by severe delays, with cases typically taking over 13 years to resolve, which could impede timely trials following the expedited investigations mandated by the bill. Finally, the legal rights of the accused must be considered, as the framework guarantees a right to a fair trial, potentially prolonging the judicial process through appeals and mercy petitions, thereby complicating the overall effectiveness of the proposed amendments (The Leaflet) .

Way Forward

The government is endeavouring to reform society by enacting various laws aimed at decreasing the incidence of sexual violence in India. However, lawmakers seem to overlook the fact that merely introducing these laws is insufficient. For any law or reform to be effective, it must be rigorously enforced and grounded in practicality.

While the proposed Bill seeks to impose capital punishment on rapists, one must question whether such a measure truly serves as a deterrent against rape. There is no substantial evidence to suggest that capital punishment would lead to a reduction in rape cases. It is imperative to first address the backlog of cases that burden our judicial system, a situation exacerbated by the lack of commitment to enforce existing laws. Therefore, fostering a strong resolve among the populace is crucial for achieving genuine societal reform.

References

Dristhi. (n.d.). West Bengal “Aprajita” Anti-Rape Bill. Dristhi. https://www.drishtiias.com/
Kessel, A. (2021). Rethinking Rape Culture: Revelations of Intersectional Analysis. American Political Science Review. https://www.cambridge.org/academic
The Leaflet. (n.d.). Aparajita Bill: The inadequacy of rape law reform. The Leaflet. https://theleaflet.in/
Legal Information Institute. (n.d.). The Criminal Law (Amendment) Act 2013. Legal Information Institute. https://www.law.cornell.edu/
Times of India. (n.d.). What is Nirbhaya Case? Times of India. https://timesofindia.indiatimes.com/

About the Author: Arohi Sanyal is a research intern in IMPRI. She has completed her Masters in Gender Studies from Dr.B.R Ambedkar University,Delhi.

Acknowledgment: The author would like to thank Aasthaba Jadeja, Dr.Arjun Kumar, Naushaba and Stuti for reviewing the article and providing their valuable feedback.