RAPE OF THE LAW
Contents
APARAJITA ANTI-RAPE BILL IN THE WAKE OF ABHAYA
“What we call public opinion is generally public sentiment” -Benjamin Disraeli
Introduction
On the black day of 9th August 2024 India again witnessed Nirbhaya in the form of Abhaya. It
was the brutal rape and murder of a female trainee doctor of R.G. Kar Medical College and
Hospital in Kolkata at her workplace. It sparked debates and controversies about the
effectiveness and credibility of women safety and sexual violence laws in India. The Nation
where on an average 86 rape cases are registered every day and many remain unreported due
to social stigma in society, faces significant challenges with only 27.4 percent conviction rate.
The legal and administrative system have failed in dealing with such crimes. Whether it is the
case of Vishakha & Ors. v. State of Rajasthan, in which a woman was gang raped because she
was preventing a child marriage of an infant as a social worker in Rajasthan, where no proper
procedure was followed by Police, or the Nirbhaya incident of capital city which shocked the
entire nation. What happens next is again the public protests for some weeks, new criminal law
with stricter provisions by government and then public forget about that incident without any
major change in system, which left space for again happening of such crimes. However, the
question rises whether these steps succeed in eroding rapes? Its answer lies in recent incident
and rising NCRB Crime data.
These ineffective laws of rape which are again and again drafted and implemented due to the
public sentiments are jeopardizing the nation itself with no commendable changes for the safety
of women, converting Laws of Rape as Rape of the Law itself because only drafting the law is
not going to erode these cases, we need a significant change in our cultural and educational
system along with the proper implementation and prosecution by the authorities.
The Aparajita Women and Child Bill (West Bengal, Criminal Laws Amendment), 2024 by the
Government of West Bengal is not a different one which is free from these issues and
sentiments. This bill which has been passed unanimously, which has become the first bill to
seek changes in the new criminal act’s rape provisions including Bharatiya Nyaya Sanhita 2023
(BNS), Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) and Protection of Children from
Sexual Offences Act 2012 (POCSO). It will be the third bill for sexual violence laws after the
state bill of Maharashtra and Andhra Pradesh which will be sent to President for its
implementation if Governor gives an assent because it includes the provisions which overrides
the central laws.
Legal Provisions or Amendments Proposed in the Bill:
A). Bharatiya Nyaya Sanhita, 2023:
a). In sub-section (1) of Section 64 which is about punishment, states that “rigorous
imprisonment for a term which shall not be less than ten years, but which may extend
to imprisonment for the remainder of that person’s natural life, and shall also be liable
to fine” have been proposed to be amend in this bill in following way: “rigorous
imprisonment for life, which shall mean rigorous imprisonment for the remainder of
the person’s natural life and fine, or with death”
b). Under Section 65, the provisions of rape of minors below ages of 16 and 12 have been
abolished and absorbed into broader clauses with more penalties.
c). In Section 66 the only penalty has been converted into death for the aggravated rape
that causes victim’s death or leaves them in a vegetative state.
d). The sub section (1) of Section 70 (Gang Rape) states for rigorous imprisonment for life
and fines and these fines have been intended to cover the victim’s medical treatment,
rehabilitation and payment to the victim’s next of kin which is mandatory.
e). Section 71 (Repeat Offenders) has been prescribed for rigorous imprisonment for life
and finer or the death penalty.
f). For Disclosing the victim’s identity, punishment has been increased from two to three
years under Section 72. For publication of unauthorized court proceedings the
imprisonment term has been raised to range of three to five years with fine.
g). Under subsection (1) of Section 124 (Grievous Hurt by Acid) life time imprisonment
and fine has been prescribed and Subsection (2) addresses the attempts to cause harm
with acid, for this the same punishment has been prescribed.
B). Bharatiya Nagarik Suraksha Sanhita, 2023:
a). Section 29 A for speedy trials by special courts in each district, presided over by
Sessions or Additional Sessions Judges has been proposed for handling these offences
exclusively. The judges will be appointed as per the concurrence of Calcutta High Court. The Government will also appoint Special Public Prosecutors under Section 29
B with a minimum of seven years of legal experience.
b). Under Section 29 C Aparajita Task Force, a district level investigation body led by
Deputy Superintendent of Police will be established which will prioritize female
officers for investigation. For cooperation all government officers will help, failure to
do so will be treated as a cognizable and non-bailable offence.
c). Under the Section 193 investigation period for specific offences has been reduced form
two month to 21 days. If unavoidable, an extension of up to 15 days can be granted by
an officer ranked Superintended of Police. or equivalent with written justification.
d). The trial process for offences under section 64, 66, 68, 70, 71, 72, 73 and 124 of the
BNS must be completed within 30 days of filing the chargesheet under Section 346.
e). Under Section 29 C (4) if there is no compliance with aiding the task force during
investigation will result in imprisonment up to six months or a fine of up to Rs. 5, 000
or both.
C). Protection of Children from Sexual Offences Act, 2012:
a). Under Section 4’s subsection (1) the punishment for penetrative sexual assault has been
enhanced to rigorous imprisonment for life for whole natural life or death penalty. It
has replaced the imprisonment for a term not less than 10 years. Again in subsection
(2) 20 years life imprisonment punishment has been substituted for rigorous
imprisonment for life for remainder of natural life or death penalty. In Subsection (3)
the requirement for fair and reasonable fine has been introduced for covering the
medical expenses and rehabilitation of the victim or their next of kin which will be
determined by Special court and if payment is not made then it will be recovered in a
manner prescribed by section of BNSS, 2023. For the Aggravated Penetrative Sexual
Assault under Section 6 the similar amendments have been proposed.
b). Under the section 8 the minimum term of imprisonment for sexual assault is increased
from three years to seven years, with the maximum term raised from five years to ten
years, in addition to a fine. The same has been changed under section 10 for the
aggravated sexual assault.
c). The timeline for the competition of recording of evidence is reduced from 30 days to 7
days under sub section (1) of Section 35 and trail under subsection (2) has been
proposed to be completed within 30 days from the filing of the chargesheet, reducing
the previous timeline of one year.
Significant Provisions Proposed in the Bill and their Challenges:
a). Punishment for Rape and Murder
The bill proposes a provision for a death penalty for rape leading to the death of the victim or
putting them into a persistent vegetative state. Unlike the BNSS which allows the judicial
discretion where the court may impose a life imprisonment or any other fixed prison term. The
legislation proposes life imprisonment for repeat offenders, with the possibility of the death
penalty if the circumstances call for it. However, according to the Justice Verma Committee
this provision stands wrong because if death penalty would be there then criminals would not
even leave the victim alive. However, here again a question rises whether the trainee doctor is
alive or not? Hence, it needs to be dealt with balanced approach.
b). Investigation Deadline
It prescribes a time limit of 21 days for the completion of preliminary inquiries into sexual
violence cases and trial to be completed within 30 days. This is much shorter than the BNSS
requirement of two months. However, It is difficult to complete investigations within the 21
days because of the nature of rape cases and the current congestion in the legal system where
average disposal time of cases is over 13 years. It can also affect the right to fair trial and Rights
of an accused.
c). Protection Of Victim’s Identity The Aparajita Bill is more stringent in its approach towards the protection of identities, as it
calls for 3 to 5 years of imprisonment for anyone who reveals the identity of a sexual violence
victim. It is higher than the BNSS that calls for a maximum of 2 years imprisonment and a fine
for the same. It also introduces the penalties for police and health officers who will fail to act
in a right manner during the case and try to tamper the evidence.
d). Specialized Courts and Aparajita Task Force
It calls for establishment of 52 fast track special court dedicated to handling the cases related
to the sexual violence and a special Aparajita Task Force at district level for rapid investigation.
The implementation of these provisions will be a challenge because there is need of rapid need
of enhancement in the infrastructure, and training of officers which needs a huge amount of finance. e). Legal Challenges:
This bill may violate the constitutional provisions of federal structure as well as create conflict
with the central laws. It has also let the courts challenge state amendments to central laws,
earlier case such as State of West Bengal v. Union of India, 1964 and KK Verma v. Union of
India, 1960 where the Supreme Court held the legislation of central supreme leading to
challenges in official implementation.
Conclusion:
Legal reforms in sexual violence must reflect a commitment to change, not just the appearance
of action. The West Bengal bill’s provisions are significant steps towards making strict laws,
but this is not the right solution for eroding the rape cases in India. In this view, as we see the
Nirbhaya case a 17-year-old criminal was acquitted because of minor age, however when law
was changed above 16 aged person criteria was set for eligible for punishment. In contrast what
will happen if the upcoming rape is committed by a 15-year guy. This shows that the bills like
Aparajita are not enough for protection of women however we need to have cultural revolution
and societal education to each person. Till the Societies viewpoint towards women do not
change and our legislative prosecution would not take significant steps in the trial, punishment
and supportive measures, there will be presence of such crimes. The Abhaya and Nirbhaya both
will always be a blackspot on the whole legal system of India. We can’t white polish these
blackspots but can ensure that these can be abolished for the future of women safety.
-By Pratiksh Sharma
Prevention of Money Laundering Act
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