All about Bengal’s Aparajita Bill that proposes death sentence for rape convicts

Mamata Banerjee

The West Bengal Assembly today passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024.

A two-day special session of the Assembly had been summoned on Monday in the wake of the rape-murder of a woman medic at the state-run Kar Medical College and Hospital last month and the bill is scheduled to be tabled by state Law minister Moloy Ghatak. Sharing details of the proposed Bill, TMC's Nilanjan Das said the it was aimed at amending the existing provisions under the Bharatiya Nyaya Sanhita (BNS) and at seeking the death penalty in rape and murder cases.

What is the bill?

The Bill seeks to punish “persons committing an offence of rape and inflicting injury which causes death or causes the woman to be in a vegetative state” with the death penalty, as per official documents. The state cabinet on August 28 approved a proposal to introduce a new bill aimed at preventing rape and ensuring stricter punishments for such crimes.

Titled the 'Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024,' the legislation aims to strengthen protections for women and children by revising and introducing new provisions related to rape and sexual offences.

The bill is aimed at amending the existing provisions under the Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and the Protection of Children from Sexual Offences Act, 2012, “in their application to the state of West Bengal to enhance punishment and to constitute the framework for…expeditious investigation and trial of the heinous act of violence against women and children.”

Legal experts weigh in 

Legal experts speaking to various media houses believe the West Bengal government's move to introduce an anti-rape bill in the state Assembly was constitutionally valid, but it will require presidential assent for it to become a law.

Any amendment brought by the state would prescribe punishments incompatible with what is prescribed under the new criminal laws of Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) and will require presidential assent under Article 254(2) of the Constitution.

Article 254(2) allows a state legislature to pass a law that contradicts a central law on a matter in the concurrent list, but only if the state law receives presidential assent. This means that the state law will prevail in that state, even if it is different from the central law as long as it has been approved by the President.

The Andhra Pradesh Disha Bill of 2019 and the Maharashtra Shakti Bill of 2020 had only one penalty — mandatory death — for all rape and gang-rape cases. Both were passed unanimously by the state legislatures; but neither has got presidential assent till date.

What are the provisions of the Bill? 

As per the official documents, the Bill includes a provision for the death penalty for "persons committing an offence of rape and inflicting injury which causes death or causes the woman to be in a vegetative state."

It further includes a provision about time-bound investigation in rape cases. It also seeks to penalise publishing without permission any matter related to court proceedings in such cases, The Telegraph reported.

The provisions of the draft Bill on the investigation and prosecution process stipulates that the probes into the rape cases shall be completed within 21 days of the initial report from the earlier two-month deadline.

Fast-track court, Aparajita Task Force

The Bill also seeks to set up fast-track courts for rape cases. “To expedite investigations and ensure swift justice for victims, this Bill proposes dedicated special courts and investigation teams. These specialised 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 minimising the trauma experienced by victims and their families”.

‘Aparajita Task Force’ will be constituted to investigate cases of rape or atrocities on women and children. The task force will be formed at the district level and headed by a deputy superintendent of police for the investigation.

Can the Bill be passed smoothly?

With the Trinamool Congress having a support of 223 MLAs in the 294-member Assembly, the passage of the Aparajita Bill should be smooth. Reports say BJP legislators have not hinted whether they would support or abstain during voting. Since the Bill is on the concurrent list, it would need approval from both the state governor and President.

As per Article 254(2) of the Constitution, a state legislature can pass a law that contradicts a central law on a matter in the concurrent list, but only if the state law receives presidential assent. This means that the state law will prevail in that state, even if it is different from the central law as long as it has been approved by the President.