The Constitutionality Of West Bengal's Anti- Rape Laws

As widespread protests sweep the nation in response to the tragic rape and murder of a doctor in Kolkata, the West Bengal Assembly has responded by passing the Aparajita Woman and Child Bill, aiming to strengthen protections for women and children. Since the criminal laws comes under the Concurrent list, the bill needs to get approved from the state Governor as well as President of India and there is no specified time or obligation under Constitution to approve such bills.

The three significant elements of the Bill are – increased punishment, speedy investigation and rapid dispensation of justice. The State of West Bengal has become the first state to amend the Bhartiya Nyaya Sanhita, 2023. The bill seeks to amend the relevant sections of BNS and POCSO Act. It increases the punishment for rape under section 64(1) of BNS from 10 years to 'RI that may extend to life and fine to RI for life or death'. Along with akin changes, the bill has proposed mandatory death penalty for cases under section 66 BNS i.e. Rape that causes death or persistent vegetative state.

Though the constitutional validity of death penalty has been upheld in the Bachan Singh's case but there is a flaw in our understanding of the ratio held in that case, which has been clarified by the Hon'ble Supreme Court in Mithu v. State of Punjab (1983). In Bachan Singh, it has not been held that “death sentence is constitutional” instead it has been that “it is permissible under the Constitution to provide for the sentence of death”. The constitutionality of Section 302 of the IPC (now section 103 of BNS) was put on check in Bachan Singh's case and the question was raised that whether death as an alternative sentence may be imposed (Section 302 of IPC provides for either life imprisonment or death penalty). The majority in Bachan Singh held Section 302 of the IPC valid for three main reasons: Firstly, the death sentence provided under Section 302 is an alternative to the life imprisonment. Secondly, special reason has to be recorded under Section354 (3) of CrPC if death sentence has to be imposed. Thirdly, the accused is entitled to be heard on the question of sentence under Section235 (2) of CrPC.

Therefore, the ratio of Bachan Singh is that death sentence is Constitutional if it has been prescribed as an alternative sentence. Whenever death sentence is made mandatory the accused is deprived of the opportunity under Section 235 (2) of the CrPC to show cause that why they should not be sentenced to death and the court also relieved from its obligation to state the special reason for imposing the death penalty. The deprivation of safeguards discussed in Bachan Singh is unjust.

Judicial discretion is the thing prevented the outlawing of sentence of death even as an alternative penalty for murder and the exclusion of this discretion from Section 303 of the IPC is the reason for the provision being declared invalid. In Mithu v. State of Punjab it has been observed that the sentence of death is so irrevocable, so irrestitutable that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable and such law must necessarily be condemned as arbitrary and oppressive.

As death penalty is the mandatory punishment under the amended provision, neither section 235(2) nor section 354 (3) of the CrPC comes into picture. If the court has no other option than awarding death penalty, it is meaningless to hear the accused on the question of sentence.

Following the Mithu Judgement, the Hon'ble Supreme Court in another judgement of State of Punjab v. Dalbir Singh has highlighted the importance of judicial review and has declared Section 27 (3) of the Arms Act as unconstitutional and violative of the “due process” test incorporated. Section 27(3) of Arms Act provided that whoever uses any prohibited arm or prohibited ammunition or acts in contravention of Section 7 and such use or act results in the death of any other person then that guilty person shall be punishable with death. It has imposed an irreversible death penalty which is repugnant to the notion of right and reason. The court has taken into account that the guarantee against the cruel and harsh punishment given in the 8th Amendment to the U.S Constitution also constitutes a part in our Constitution and is envisaged in Article 13(2). Also, keeping in view the provisions which give judiciary the discretion in case of imposing death penalty i.e. Section 253(2) and Section 354(3) CrPC, the Court has held such a provision as sheer deprivation of judicial discretion, therefore declared Section 27 (3) of the Arms Act, 1959 as unconstitutional and void.

Another aspect where the attention to be drawn is the rule of fair hearing. In a criminal proceeding, two litigations are conducted for the final disposal of matter. One for the adjudication of guilt and another for deciding the sentence. The significance of stage of sentencing has been time and again mentioned in the judgements of the Supreme court. In SantaSingh V. State of Punjab, the Supreme Court highlighting the importance of sentencing held it as important as the adjudication of guilt and should not be treated as a subsidiary issue. Moreover, Section 235(2) of CrPC was not a formality which could be dispensed with and requires sincere consideration as held in Muniappan v. State of Tamil Nadu. The Apex Court in X v. State of Maharashtra observed that the provision should mandatorily be complied with the best efforts of the trial courts and if the lower court fails to comply with it then it has to be rectified before the appellate court.

The mandatory death sentence hampers the opportunity of a person guilty to be heard in the subsequent hearing. And the denial of hearing on sentence is against the spirit of Article 21 of the Constitution which talks of “procedure established by the law”. As rightly observed in Mithu v. State of Punjab, the last word on the question of justice and fairness does not rest with the legislature and courts are the authority to decide whether the procedure prescribed for depriving a person of his life or liberty is just, fair and reasonable. The legislature while fixing this mandatory punishment of death not only takes away the judicial discretion but it also surpasses the power of the judiciary to have the final words.

Views are personal.