Rape
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 the hospital in Kolkata is her workplace. It sparked debates and controversies about the
effectiveness and credibility of women’s safety and sexual violence laws in India. The Nation, where on average 86 rape cases are registered every day and many remain unreported due to social stigma in society, faces significant challenges with only a 27.4 % conviction rate.
The legal and administrative system has 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 the Police, or the Nirbhaya incident of the capital city, which shocked the
entire nation. What happens next is again the public protests for some weeks, a new criminal law with stricter provisions by the government and then the public forgets about that incident without any
major change in the system, which leaves space for the recurrence of such crimes. However, the question arises whether these steps succeed in eradicating rapes? Its answer lies in the recent incident
and the rising NCRB Crime data.
These ineffective laws of rape, which are again and again drafted and implemented due to Public sentiments, are jeopardising the nation itself, with no commendable changes for the safety of the nation.
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 different from others, which is free from these issues and sentiments. This bill, which has been passed unanimously, 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 the President for its
implementation if the Governor gives an assent, because it includes provisions which override 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” has been proposed to be amended in this bill in the 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 the 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 the 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, a fine, or the death penalty.
f). For disclosing the victim’s identity, punishment has been increased from two to three
years under Section 72. For the publication of unauthorised court proceedings, the
imprisonment term has been raised to a range of three to five years with a fine.
g). Under subsection (1) of Section 124 (Grievous Hurt by Acid), life imprisonment
And a 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 have been proposed for handling these offences
exclusively. The judges will be appointed as per the concurrence of the 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, the Aparajita Task Force, a district-level investigation body led by A Deputy Superintendent of Police, will be established, who will prioritise 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 Section 193, the investigation period for specific offences has been reduced from two months to 21 days. If unavoidable, an extension of up to 15 days can be granted by
an officer ranked Superintendent of Police. or equivalent with written justification.
d) The trial process for offences under sections 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 the whole natural life or the death penalty. It
has replaced 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 the remainder of natural life or the death penalty. In Subsection (3)
The requirement for a fair and reasonable fine has been introduced to cover the
medical expenses and rehabilitation of the victim or their next of kin, which will be
determined by the 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, similar amendments have been proposed.
b) Under 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 completion of the recording of evidence is reduced from 30 days to 7 days under sub-section (1) of Section 35, and the trial under subsection (2) has been
proposed to be completed within 30 days from the filing of the chargesheet, reducing
The previous timeline was 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 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 is wrong because if the death penalty were in place, then criminals would not
even leave the victim alive. However, here again, a question arises whether the trainee doctor is
alive or not? Hence, it needs to be dealt with a balanced approach.
b). Investigation Deadline
It prescribes a time limit of 21 days for the completion of preliminary inquiries into sexual
violence cases and the trial to be completed within 30 days. This is much shorter than the BNSS
requirement of two months. However, it isn’t easy to complete investigations within the 21
days because of the nature of rape cases and the current congestion in the legal system, where the
average disposal time of cases is over 13 years. It can also affect the right to a fair trial and the Rights
of an accused.
c). Protection Of the 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, which 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 fail to act
in the right manner during the case and try to tamper with the evidence.
d) Specialised Courts and Aparajita Task Force
It calls for the establishment of 52 fast-track special courts dedicated to handling the cases related
to sexual violence and a special Aparajita Task Force at the district level for rapid investigation.
The implementation of these provisions will be a challenge because there is a need for rapid enhancement in the infrastructure and training of officers, which requires 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 that the legislation of the central government 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 reducing rape cases in India. In this view, as we see the In the
Nirbhaya case, a 17-year-old criminal was acquitted because of his minor age; however, when the law
was changed, the 16-year-old age criterion was introduced for eligibility for punishment. In contrast, what
will happen if the upcoming rape is committed by a 15-year-old guy? This shows that the bills like
Aparajita is not enough for the protection of women; however, we need to have a cultural revolution
and societal education for each person. Till society’s viewpoint towards women
changes and our legislative prosecution takes significant steps in the trial, punishment
and supportive measures for 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’s safety.
-By Pratiksh Sharma
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