The work of law is to deliver justice and maintain order. Since justice is not mere retribution, its intent mustn't be compromised for a perceived lack of adequate penalties or appeasement of the masses. The law must therefore be wielded with unwavering commitment to its principles even when the outcomes are difficult or unpopular. Professor Wechsler, the American legal scholar, aptly emphasized the role of penal law as a responsibility for being rational since in no other field of law more is at stake for the community or the individual.
The West Bengal government faced immense backlash on the issue of women's safety after the gruesome incident at the RG Kar Medical College. The resident doctor was brutally raped and murdered while she was resting in the seminar hall after a backbreaking 36 hours shift. Similar incidents in Maharashtra, Bihar and Uttarakhand also surfaced in August raising pertinent questions of gender-based violence in India. Amidst the outrage condemning the incident(s), several took to the streets. The Maharashtra High Court while hearing the Badlapur sexual assault case, where two minors were sexually assaulted, off the record, reprimanded the police for delay in preliminary inquiry saying, “Do you want to say that unless people don’t come on the streets probe will not be carried seriously?”
The protests were a spontaneous repercussion of the failure of the state to take appropriate measures to curb gender violence. The rot of the ailing society was called out in protest and the public sentiments pivoted towards capital punishment for the perpetrator(s). The swelling dissent against the state led to the summoning of a special session of the West Bengal State Assembly. In a sort of knee-jerk response to the public outcry, the State Assembly unanimously passed the Aparajita Woman and Child (West Bengal Criminal Amendment Laws) Bill, 2024. However, and enacting a law with capital punishment provisions isn’t a viable response to the deeper rot of society. Despite the fervour, deeper analysis or a coherent vision for systematic reforms remained sparse. The Bill now awaiting the Governor’s assent, appears to be little more than a political manoeuvre in the ongoing blame game and theatricalities between the state and the centre. Compounding this is the reality that criminal laws cannot be applied retrospectively, rendering the Bill a sugar-coated concession for those demanding justice.
At the outset, the preamble of the Bill asserts its objective to enhance the punishment and to amend the procedure in cases of heinous offences against women and children. The Bill does not acknowledge the issue that shall be promptly dealt with - the strategy for social transformation and deterrence of crime against women and children. Notably, the Bill introduces capital punishment in several offences of rape. However, there is no critical research which recognises/ suggests that capital punishment effectively deters heinous crimes. Moreover, the criteria for imposing capital punishment remains unclear in cases of rape, more likely the criteria shall hinge on another ambiguous criterion i.e., rarest of rare doctrine. This, coupled with the inherent risk of error, could unjustly cost an unrepresented person their life.
The argument that capital punishment fails to deter heinous crimes is supported by the fact that 112 countries have abolished it entirely. In 2020 Bangladesh took an opposite approach and introduced capital punishment for rape by amending the Women and Children Repression Prevention Act. The Amendment brought by Bangladesh has uncanny similarities with the Aparajita Bill, which includes the enhancement of punishment and the removal of minimum sentencing caps. The Amendment Act of Bangladesh too was fixated on the principle of retribution. The 2020 Amendment Act complicated the justice system, leading to a lack of transparency in handling cases of sexual violence, overwhelming the higher judiciary, and causing severe delays in legal proceedings. The prisons were overcrowded, though the conviction rate remained low but disproportionately impacted the marginalized communities, revealing the deep flaws in using capital punishment as a populist solution.
Additionally, the Aparajita Bill’s provision to levy fines on perpetrators for the rehabilitation of survivors appears to be an attempt by the state to evade its responsibility as Parens Patriae. The role and obligation of the state in the rehabilitation of the victims will be compromised. The state by the doctrine of Parens Patriae is obligated to ensure comprehensive rehabilitation, encompassing medical and psychological support, legal support and social reintegration, to name a few of the responsibilities. The law made in haste is ostensibly inconsistent in its aim to deliver just punishment or effective rehabilitation to the survivor.
Enhancing punishments, as proposed by the Bill, is a bad substitute for reforms needed for meaningful social transformation. There is no evidence to show that harsher penalties deter crime. For instance, after the Nirbhaya incident, the 2013 Amendment to the penal statute enhanced the punishments but failed to curb sexual violence against women and children. Despite the claims of deterrence, the number of rape cases remained alarmingly high. According to NCRB data, 33,707 rape cases were registered in 2013, the numbers fluctuated in subsequent years—36,735 in 2014, 34,651 in 2015, and 38,947 in 2016. The latest statistics show a similar trend, with 31,516 cases recorded in 2022.
The Bill constitutes the ‘Aparajita Task Force’ led by the Deputy Superintendent of Police for the investigation of heinous crimes against women and children. The Amendment tweaks the provision of Bhartiya Nyaya Suraksha Sanhita (BNSS), Section 193 (2), wherein it is mandated the officer in charge complete the investigation within 21 days from the date of receiving the information. While the new timeline aims to ensure swift justice, the toss-up situation remains wherein the haste may compromise the quality of the investigation, potentially leading to more acquittal in cases of heinous crime. According to the NCRB statistics from 2018-2022, the conviction rate in rape cases has been abysmally low ranging between 27% to 28%. Faulty investigations and discrepancies in evidence collection are the primary causes of such acquittals. Endorsing capital punishment for rape cases could lead to a decline in reporting, especially given that many assaults are committed by close relatives or acquaintances. Survivors may hesitate to come forward, fearing the severe consequences for their attackers, who are often extended family members. Additionally, the likelihood of survivors being harmed or killed would increase, as perpetrators may resort to silencing victims to avoid the gallows.
The Prevention of Sexual Harassment at the Workplace Act (PoSH Act), 2013 has proven largely ineffective. While the Principal Act mandates the establishment of Internal Complaint Committee (ICC) at workplaces and Local Complaint Committees at the district level, a lack of transparency and inadequate data on the adjudication of PoSH cases continues to hinder progress.
The internal redressal mechanism under the PoSH Act, particularly the restrictive three-month window for filing complaints, has discouraged many survivors from seeking justice. Instead of offering a safe and supportive space, the in-house Internal Complaint Committees (ICC) often deter individuals due to legitimate concerns over impartiality and biases rooted in caste, class, and gender dynamics between the complainant and the accused. The swift exoneration of former Chief Justice of India, Ranjan Gogoi, in a sexual harassment case against him, is a striking example of the system's patriarchal leanings, illustrating how the very mechanisms meant to protect women often reinforce existing power imbalances.
The J.S. Verma Committee had proposed several measures (legal as well as sensitisation) after the infamous Nirbhaya case. However, these recommendations have not been implemented, and the broader trend of tribunalisation of justice has failed to yield meaningful improvements, leaving systemic issues unresolved.
True reform begins with empowering women through economic independence, enabling them to break free from the hidden chains of economic violence. Achieving equal social standing requires a safe, supportive environment, shaped by the collective efforts of society, including expanding education and job opportunities for women. Socio-economic factors, like high unemployment, are correlated with increased sexual violence, particularly intimate partner violence. During the pandemic, women faced a "shadow pandemic" of domestic violence, with the National Commission for Women (NCW) receiving 4,350 complaints, while a UN Women report revealed that 1 in 3 women globally experienced physical or sexual violence from their intimate partners. Yet, in India, marital rape remains protected by the outdated Hale’s doctrine as has been asserted in History of the Pleas of the Crown in 1736
‘the husband cannot be guilty of rape committed by himself upon his lawful wife for, by their (wife) mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract’.
Additionally, law enforcement must evolve beyond its colonial roots, where it functioned primarily as a tool for suppressing dissent. India's police system needs to engage with communities at a grassroots level, fostering trust and collaboration to effectively address violence and promote women's safety.
Addressing sexual violence against women and children requires more than harsh punishments, as the issue is deeply rooted in patriarchal cultural norms. Rape has been used as a tool of domination, the right-wing hero V.D Savarkar had justified rape as a political tool. He wrote,
Let the Sultans and their peers take a pledge that in the event of a Hindu victory, our molestation and detestable lot shall be avenged on the Muslim women. Once they are haunted with this dreadful apprehension that the Muslim women too, stand in the same predicament in the case of the Hindus win, the future Muslim conquerors will never dare to think of such molestation of Hindu women.
Proposals to tweak legal provisions, while important, are inadequate steps toward creating a safer environment for women. Such changes alone cannot address the deep-rooted issues; true reform must come from the ground up. The horrifying incident in Ujjain, Madhya Pradesh, where a woman was raped in broad daylight while bystander(s) recorded the assault, reiterates the cultural apathy towards women and sexual violence. The answer to structural violence is to smash the patriarchy and the attendant norms and false sense of superiority it fosters.
