The recently passed Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, presents itself as a law intended to address the grave issue of sexual violence. Yet, beneath its facade lies a troubling reality—one marked by populist rhetoric and a hasty response to public outrage. This bill, rather than providing substantial solutions to protect women and children, seems to perpetuate a cycle of ineffective legal reforms that may, in fact, worsen the situation for survivors of sexual violence.
The genesis of the bill can be traced to the catalyst that was the tragic rape and murder of a resident doctor at R.G. Kar Medical College in August 2024, which led to widespread protests and outrage, erupting in Kolkata and then spreading to larger parts of West Bengal, soon to other parts of India. As often happens in cases of high-profile sexual violence, the response from the state government has leaned toward punitive measures, ignoring the deeper structural issues in the criminal justice system. The criminal laws were amended in 2013 after the brutal rape of a woman in Delhi; subsequently, States including Madhya Pradesh, Rajasthan, Haryana, Andhra Pradesh, Maharashtra and Arunachal Pradesh have sought amendments for enhanced punishment for sexual assault. West Bengal is the latest to join this trend. Instead of deliberating on effective long-term solutions, the state has resorted to enacting a law that increases punishments without addressing the systemic failures that contribute to low conviction rates and the perpetuation of 'rape culture' in India.
Key Provisions and Their Unintended Consequences
This Bill introduces the death penalty or life imprisonment for rape by amending relevant sections of the Bharatiya Nyaya Sanhita (BNS), the newly enacted penal code. Specifically, the death penalty is proposed for five types of offenses: rape; rape by a police officer or public servant; rape resulting in death or permanent vegetative state; gang rape; and repeat offenses. Additionally, the Bharatiya Nagarik Suraksha Sanhita (BNSS) has been amended to establish special courts for expeditious trials of such cases, while the Protection of Children from Sexual Offences (POCSO) Act, 2012, has also been revised to include the death penalty for penetrative sexual assault and aggravated sexual assault. The Bill now awaits the President's assent for these state-specific amendments to take effect.
One of the bill's most alarming provisions is the mandatory minimum sentence of life imprisonment for rape, which translates to imprisonment for the remainder of a person's natural life. Furthermore, the bill introduces a mandatory death penalty in certain cases, a measure that contradicts established legal principles, such as the Indian Supreme Court's ruling in Mithu v. State of Punjab, which deemed the mandatory death penalty unconstitutional. This position has been reiterated by several High Courts as well and is a larger reflection on the global legal trend i.e. judicial sentencing discretion in capital cases is constitutionally required.
While the state government has predictably argued that these harsher punishments will act as deterrents, the reality is far more complex. As legal scholars have pointed out, harsher sentencing does not necessarily lead to higher conviction rates. In fact, the opposite is often true. Judicial scrutiny increases with stricter penalties, making it more difficult to secure convictions. This is particularly problematic in a country like India where the conviction rate for rape is already dismally low, primarily due to factors such as inadequate police investigations, hostile court environments for survivors, and the lack of adequate witness protection mechanisms leading to a large number of witnesses turning hostile.
The bill also raises the specter of reducing reporting rates for sexual violence, especially in cases where the perpetrator is known to the victim. Studies show that many survivors are reluctant to come forward if they fear that their complaint might result in a death sentence for a family member or someone within their social circle. This is particularly relevant in India, where acquaintance rape constitutes the majority of sexual violence cases, and where the exemption of marital rape from legal scrutiny remains firmly in place. By focusing on stranger rape and capital punishment, the bill ignores the reality of how most sexual violence occurs.
Keeping these in mind, the Justice J.S. Verma Committee, set up in the aftermath of the Nirbhaya protests in Delhi, had explicitly stated that it was not inclined to recommend the death penalty for rape, even in the rarest of rare cases, asserting that "seeking the death penalty would be a regressive step in the field of sentencing and reformation." Despite this, the death penalty was later introduced for the rape of girls under 12 and for gang rape of those under 18 as knee jerk response through the cunning of law reform.
Carceral Populism and Its Impact
The introduction of capital punishment for rape is emblematic of what feminist scholars call carceral populism—a form of governance that responds to public outrage by increasing the severity of punishments without addressing the root causes of crime. As feminists have noted, carceral populism does not serve the ends of justice. Instead, it deepens the majoritarian state's hold on society, while sexual impunity remains widespread.
This bill, much like the Bharatiya Nyaya Sanhita (BNS), which was implemented earlier in 2024, reflects the state's desire to appear tough on crime while failing to address the underlying issues of gender-based violence. The death penalty and life imprisonment may provide a temporary sense of justice to some, but they do nothing to dismantle the structures that enable sexual violence in the first place.
Ignoring the Real Work of Justice
While the Aparajita Bill focuses almost exclusively on increasing punishments, it offers little in the way of meaningful reforms to strengthen the criminal justice system. For instance, the bill calls for the establishment of special courts and special public prosecutors to handle cases under the new law. However, as experience with fast-track courts has shown, without adequate infrastructure and training, these courts often fail to deliver justice. Special courts are not a panacea—they require properly trained legal professionals who understand the complexities of sexual violence cases and who can ensure that survivors are not revictimized by the system.
Moreover, the bill glosses over the pressing need for gender sensitization among law enforcement and judicial officers. Legal mechanisms to support survivors, such as witness protection programs and trauma-informed judicial practices, remain absent from the bill. Instead of addressing these critical gaps, the state has chosen to focus on punitive measures that are unlikely to have any meaningful impact on conviction rates or survivor protection.
The Question of Accountability
Another glaring omission in the Aparajita Bill is the lack of attention to accountability within the law enforcement and judicial systems. The bill fails to address the role of public prosecutors, many of whom are appointed based on political affiliations rather than competence. As a result, special courts often suffer from the same legal incompetence that plagues the rest of the system.
Studies have also shown that many courts, including those handling cases under the Protection of Children from Sexual Offences (POCSO) Act, have a poor understanding of child-friendly practices. Defense lawyers frequently flout legal mandates, and courts fail to hold them accountable. This pattern is likely to continue under the Aparajita Bill, which makes no provisions for improving the quality of legal representation or judicial conduct in sexual violence cases.
A Missed Opportunity for Real Reform
The Aparajita Woman and Child Bill is a missed opportunity to enact meaningful reforms that could improve the lives of survivors of sexual violence. Instead of focusing on increasing punishments, the bill should have concentrated on addressing the systemic issues within the criminal justice system that lead to low conviction rates and revictimization of survivors.
In its current form, the Aparajita Bill serves as little more than a political tool, designed to appease public outrage while doing nothing to create lasting change. If the state is truly committed to protecting women and children, it must go beyond carceral populism and focus on the difficult, yet necessary, task of reforming the institutions responsible for delivering justice. Until then, the Aparajita Bill remains, contrary to what its name suggests, an embodiment of defeat—defeat for survivors, defeat for justice, and defeat for the rule of law.
Author is an Advocate practising before the Calcutta High Court and a Global Fellow, CHRHS, Brown University, USA. View Are Personal.