Abhaya. Tilottama. Aparajita. The junior doctor at the R.G. Kar Medical College and Hospital heinously raped and murdered has been bestowed with many names that are a testament to her fearlessness, uniqueness, and imperishable spirit. But as the festive season approaches, with kaash in the fields and an early whiff of dhunuchi in the air, there is only one name that feels appropriate for her — Durga. This year, Durga is not the deity who comes down from her heavenly abode for five days of festivity. She is the daughter who has risen to her heavenly abode with a question for all those she has left behind — can we ensure justice for her and the countless raped Durgas in our midst?
The West Bengal government has responded promptly. In modern India, passing a law to declare the death penalty as the only punishment in cases of rape and murder is viewed by governments as the apogee of women’s empowerment and protection. This is why the government hastily pushed through the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, an opening salvo designed to quell rising protests and embellish its feminist credentials. It received full support of the assembly, including that of the Opposition, which rarely sees eye to eye with the government on any issue.
The bill introduces a mandatory death sentence for cases of rape with murder (or when the victim is left in a permanently vegetative state), increases punishments across the board for offences against women and children, and sets up special courts with strict timelines to complete trials speedily. All these make for good optics. But on the slightest analysis, each of these measures ends up as either unconstitutional or an eyewash, actively detrimental to the cause of safety and security of women and children in Bengal.
It is common knowledge to a second-year student of law but presumably not to the legal advisors in the West Bengal government that mandatory death penalty is unconstitutional. The decision to award death is a decision that can only be made by a judge in a case that is considered ‘rarest of the rare’. An entire category of cases — rape with murder — cannot all be rarest of the rare. Despite this well-settled law and the explicit judgment of the Supreme Court in Mithu vs State of Punjab that no statute can mandate the death penalty, the Aparajita Bill has gone ahead and done precisely that. Clearly, the Constitution is no bar for supposed pro-women posturing.
The irony here is that neither mandatory death penalty nor increased punishment of life imprisonment in other rape cases increases the chances of conviction. In fact, the result is the opposite. After the Nirbhaya rape in 2012, Parliament introduced a mandatory minimum punishment of seven years for rape, a significant increase in jail time. In a study done by Preeti Pratishruti Dash, of 1,635 rape judgments before and after the amendment, it was found that 16.1% of cases under the old law (with lesser punishment) led to conviction, whereas only 5.72% of cases led to conviction under the new law. Harsher punishments led to fewer convictions.
The logic for this may appear counterintuitive but is sound. Consider this — Parliament increased punishment for aggravated sexual assault of children to include the death penalty in 2019. It is well-documented that a large number of cases of such sexual assault against children happen within the household. Would a child or a family member report another family member if that person can be hanged to death? Even if reported, would a court convict such a person when the consequence is so excessively harsh? A clear, empirical study shows that making punishments harsher does not prevent crime, it reduces reporting of crime and rates of conviction. It would have been wise for the government of West Bengal to study these findings if it was seriously committed to the cause of safety of women.
Equally, its announcements of setting up special courts to try such cases, an Aparajita task force to investigate them, and strict timelines of 21 days for investigation and 30 days for trial look good on paper. But speedy trials cannot be conjured up by the stroke of a pen — they need financial resources. However, the bill does not allocate resources for this purpose. Without money, no new courts can be set up, no special training provided to police officers, no investments made in forensic technologies that can facilitate quicker investigations.
In fact, a study done by the Vidhi Centre for Legal Policy in 2016 showed that out of 28 laws that provided for such special courts, in 10, existing courts themselves were designated as “special”, a name change that cannot expedite trials. In 15 laws, new courts were envisaged. However, only in 1 of these 15 — the SC/ST Atrocities Act — were new courts actually set up, and that too only in 12 states. West Bengal did not set up such courts (at the time) and pendency in the trial courts for matters under the SC/ST Atrocities Act was a staggering 90.4%.
Merely designating an existing court as a special court does not guarantee quicker trials. Even if it did, the mandated timeline of 30 days to complete a trial is so aspirational that it is laughable. In a country where the average time taken for the deposition of the victim in a rape trial is 258 days; where, in the Nirbhaya case, one of the most high-profile rape trials in this century, the total number of days taken were 253, mandating 30 days shows utter non-application of mind. If taken too seriously, it may mean compromising the fairness of the process, sacrificing truth, and perhaps also the lives of some innocents whom the police pick up as accused, at the altar of an absurd deadline.
It is unsurprising that despite the pro-woman optics of the bill, it has disappeared from the public narrative, overtaken by the continuing protests by junior doctors and the partial acceptance of their demands by the West Bengal government. However, its retreat should not mask the fact that the day the doctors’ protests finally end, this retrograde bill will still be on the books waiting for approval from the president of India to whom the governor has sent it for consideration. Given the bipartisan consensus that supported it, one cannot discount the possibility that it will become law in West Bengal one day.
On that day, the lives of many more Durgas will be at risk, with the asuras in society fancying their chances of committing a heinous act and getting away with it. For the Durgas in our midst, and the Durga who left us too soon, let the junior doctors and the general public demand that the joint task force proposed to be set up for safety and security measures in hospitals also reconsider the Aparajita Bill. It should ideally be
repealed immediately.
This Puja, let us attempt to restore and nourish Durga’s innate shakti not by superficial worship through an ill-conceived law but by deep reflection and meaningful action. That can happen only if the West Bengal government, the junior doctors, and all of us remain true to ourselves in both word and deed.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal
