WB Aparajita Women & Child Bill And Governor's Reference To President : Explained

Before referring the Bill to the President, the State government reportedly sought a technical report. Per Raj Bhavan's statement on X (formerly Twitter), the “Governor has pointed out the omissions and commission in the hurriedly passed Bill. He warned the Govt. 'Don't act in haste and repent at leisure'.”

The Statement and Object of the Bill states: "to amend the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Protection of Children from Sexual Offences, Act, 2012, in their application to the State of West Bengal to enhance punishment and to constitute the framework for, inter alia, expeditious investigation and trial of the heinous act of violence against women and children."

It was unanimously passed by the West Bengal Legislative Assembly on September 6 with a voice vote, with the opposition fully supporting it.

The legislation was tabled by the State's Law Minister Moloy Ghatak in the backdrop of the uproar and protest in the alleged rape and murder of a doctor at R.G. Kar Medical College and Hospital, in Kolkata the suo moto cognisance of which was subsequently taken by the Supreme Court.

About the Bill

It proposes introducing imprisonment of life, including simple or rigorous imprisonment.

Under Section 64(1)(b) of BNS, for the punishment for rape, the minimum punishment would be rigorous imprisonment for life and the maximum would be death punishment. A proviso is proposed to be introduced to Section 64(1) which says that a fine imposed shall be fair and reasonable to meet the medical expenses and rehabilitation of the victim'.

Similarly, for other sexual offences, life imprisonment has been substituted to include rigorous imprisonment for life or the death penalty.

It should be noted that the 2013 J.S. Verma Committee on major criminal reforms categorically denied the death penalty for the offence of rape.

Further, a Chapter is proposed to be inserted on Special Courts established for the purpose of expeditious completion of inquiry or trial for 'Specified Offences' which are Sections 64, 66, 68, 70(1), 71, 72, 73 and 124 of the BNS.

Under Section 193(report of police officer on completion of investigation) of the BNSS, the Bill proposes to complete the investigation within 21 days as against the 2 months specified in the provision. The period of investigation can be extended for a period of 15 days.

What happens now?

When a Bill is passed by the Legislative Assembly of a State, or in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature, it shall be presented to the Governor.

As per Article 200, the Governor has three options. He may give his assent, withhold the assent, or reserve the Bill for the consideration of the President. If the Governor decides to reserve the Bill for the consideration of the President, as is the case here, the President shall declare either his assent or withhold the assent as per Article 201.

If the President decides to withhold his assent, where the Bill is not a Money Bill, he may direct the Governor to return the Bill to the Legislature with a message requesting the House to reconsider the Bill, or any specified provisions, or consider the desirability of introducing an amendment. The Legislature will have to consider the Bill within six months of such a message. If the Legislature passes the Bill again, with or without amendment, it shall be presented again to the President for his assent.

Why is the assent of the President necessary?

Now that the Bill is before the President for her assent, the President will have to see if the Bill passes the mandate of Article 254 of the Indian Constitution.

As per Article 254(2), if a law made by the State Legislature in respect of a matter in a Concurrent List contains any provision repugnant to the provisions of the law made by the Parliament or an existing law, then the State Law, if it is reserved for the reconsideration of the President and has received his assent, shall prevail. However, this shall not prevent the Parliament from enacting the law on the same matter including adding to, amending, varying or repealing the law so made by the State legislature.

Article 254 covers the doctrine of repugnance which means a law is deemed repugnant if it covers the same subject matter which is contained in another statute but contains contradictory provisions.

For instance, the BNS provides maximum life imprisonment for the offence of rape, except when a rape is committed on a woman under 12 years. In the latter case, the punishment extends to death. However, the Bill proposes to amend and introduce the death penalty for the offence of rape.

Under Schedule VII, Concurrent List, Entry I and II relate to criminal matters including in the Indian Penal Code and the Code of Criminal Procedure, respectively. Thereby, meaning that both Union and States could legislate over it.

The Supreme Court in Deep Chand v. The State of Uttar Pradesh (1959) laid down the test of repugnancy as:

1. Whether there was a direct conflict between both legislations;

2. Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and

3. Whether both the laws occupied the same field.

A prima facie analysis shows that the criminal laws (IPC, CrPC and Evidence Act) are enacted by the Union Parliament. It is the Parliament which replaced these criminal laws with BNS, BNSS and the Bharatiya Sakshya Adhiniyam, which were enforced from July 1, 2024. Since the Aparajita Bill is at variance from the provisions of the central law (BNS, BNSS, POCSO Act), the assent of the President is necessary for it to become operational.