Aparajita Bill passed by Bengal a knee-jerk reaction, say experts

Emphasising that stricter punishment does not act as a deterrent and reduce the rate of crime, legal experts have termed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, which prescribes the death penalty for almost all kinds of rape, a “knee-jerk reaction” to the gruesome rape and murder of a doctor at Kolkata’s R.G. Kar Medical College and Hospital (RGKMCH).

The Bill, which was unanimously passed in the State Assembly on Tuesday, proposes amendments to five offences under the Bharatiya Nyaya Samhita (BNS), and has the provision of the death penalty for five offences — rape, rape by a police?officer?or public servant, rape causing death or sending victim to persistent vegetative state, gang rape, and being a repeat offender.

The legislation, which came 25 days after the RGKMCH incident, proposes amendments to the BNS and the Bharatiya Nagarik Suraksha Sanhita, 2023; requires the constitution of the Aparajita Task Force for investigation; and the establishment of special courts to hold trials for such offences.

Former Supreme Court Judge Asok Kumar Ganguly said there had been empirical studies to prove that stricter punishment did not reduce the rate of incidence of crime. Justice (retd) Ganguly said that there were stringent laws already in place and they had to be implemented properly.

Though the State government was within its rights to bring amendments in criminal laws, which fall under the Concurrent List, Justice Ganguly said that the legislation could not take away the right of pardon and commutation of sentence under Article 72 and Article 161 of the Constitution, under which the President and Governor could grant pardon. “This legislation is a knee-jerk reaction,” he said.

Bikash Ranjan Bhattacharya, the senior advocate representing the family of the victim, said that conviction in any crime depended on the investigation, and in this case, allegations of a compromised investigation by the police had been raised.

“It is a knee-jerk reaction. Death penalty is no penalty and it serves as no deterrent. The penalty should be for reformation of a person,” Mr. Bhattacharya said. The advocate said human life is very valuable and awarding the death penalty was a colonial practice that should be done away with it.

Protesting resident doctors of the RGKMCH, who have been on a strike since August 9, called the Bill a populist measure and said that higher punishment would reduce conviction in cases of sexual assault.

While the Bill has triggered debate on stringent punishment, the parents of the victim are upset with the West Bengal government’s notification on ‘Ratrirer sathi’ (helpers of night),?which called for avoiding night duty for women.

“Wherever possible, night duty may be avoided for women to the extent possible,” the notification issued in August following the RGKMCH rape and murder had said.

Speaking in the West Bengal Assembly on Tuesday, Chief Minister Mamata Banerjee touched on the issue, triggering fresh controversy. “Women will do duty as short as possible — 12 hours. If there is an emergency, the [male] doctor will increase duty hours,” Ms. Banerjee said, provoking a strong reaction from Opposition Bharatiya Janata Party (BJP) legislators.

While the Chief Minister clarified, “Girls who want to work at night will work”, the remarks upset the parents of the 31-year-old doctor, whose body was found in the seminar room of the RGKMCH in the early hours of August 9.

“Does she want women to leave their jobs and stay at home?” the father of the victim asked. Mr. Bhattacharya, who is representing the parents in the Supreme Court, said that the notification should be withdrawn immediately.

Even after the passage of the legislation, there has been no let up in the protests, and on Wednesday evening, there was yet another attempt to ‘Reclaim the night’ across West Bengal, including in Kolkata. People demanding justice for the RGKMCH victim switched off the lights in their homes and came out with candles, lamps and torches at various places in Kolkata, including in Jadavpur and outside the Victoria Memorial, among others. The skyline of the city plunged into darkness for several minutes due to the protests.