Legal experts are critical of West Bengal’s decision to introduce the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, which mandates the death penalty for rape. Many argue that the law, passed hastily by the Mamata Banerjee-led government, is more of a political maneuver than a genuine attempt to address sexual violence.
“From Mathura to Nirbhaya to RG Kar, India is no stranger to news of horrific sexual assaults that lead to major outcry and result in significant amendments in law governing the same,” senior advocate Amit Anand Tiwari told BOOM. “What sets the Aparajita Bill apart, however, is the hurry with which it was passed,” he said.
What Is Bengal’s New Anti-Rape Bill?
In a bid to curb sexual violence against women, the West Bengal special assembly unanimously passed the Aparajita Bill which introduced the death penalty for five offences of rape: rape; rape by police officer or public servant; rape causing death or sending victim to persistent vegetative state; gang rape and being a repeat offender.
The bill also introduces time-bound probe - to be completed in 21 days as opposed to two months, special task force and fast-track courts to ensure speedy justice.
However, West Bengal is not the first state to amend central laws on rape. States like Madhya Pradesh, Maharashtra, Andhra Pradesh, and Arunachal Pradesh have previously passed similar laws enhancing penalties, including the death penalty. Despite being passed by state assemblies, these laws await the President’s approval to come into force.
Former Law Secretary P.K. Malhotra explained that while criminal justice is on the concurrent list—meaning both the Centre and states can legislate—state amendments to criminal law typically concern procedural rather than substantive changes, requiring extensive research into criminology and jurisprudence.
“In 2012, even the Centre passed amendments as knee-jerk reaction to the Nirbhaya incident. In my view all these instantaneous legislations are unlikely to have any meaningful impact apart from making headlines today and tomorrow,” advocate Sriram Parakkat told BOOM.
So what is the state trying to achieve? Malhotra asked. “All the provisions in the state bill are already there in the Bharatiya Nyaya Sanhita (BNS). The Aparajita law, like others, is a more political move as opposed to legal necessity,” the ex-law secretary said.
Harsher punishments as a deterrence is a myth
Experts relied on studies to argue that increasing the severity of punishment, such as the introduction of the death penalty, does little to curb sexual violence. That’s why, as of 2022, at least 112 countries don't use the death penalty at all. Only 55 countries have retained the death penalty in some form.
“Deterrence is a myth,” said Dr. Kumar Askand Pandey, a law professor, emphasizing that harsher penalties seldom impact criminal behavior. He further noted that mandating the death penalty is constitutionally impermissible, a stance supported by Supreme Court rulings.
“Capital punishment may even have adverse effects,” senior advocate Amit Anand Tiwari warned, pointing out that perpetrators may resort to killing victims to eliminate evidence, resulting in even more severe crimes. https://theprint.in/judiciary/split-between-sc-state-courts-over-death-penalty-in-rape-cases/245549/
But is there any evidence from India to suggest that the death penalty deters sexual offences? The answer to this is 'no', Neetika Vishwanath, Director (Sentencing), Project 39A, National Law University Delhi, told BOOM.
"A big reason why saying the death penalty will deter rape is to distract from the real issue because the question of punishment rarely comes into play in the Indian context since conviction rates are under 30 percent. Reasons include poor police investigation, prosecutorial incapacity, pressure on victims to compromise, etc."
The National Crime Record Bureau (NCRB) data that tracks recorded cases of crime can be a simple indicator of the crime rate of the past decade. NCRB data shows India recorded 3,09,546 cases of crimes against women in 2013 - when death penalty for certain rape cases was first introduced. The number rose to 4,45,256 in 2022 or 31,000 reported rapes - according to the latest available data.
A Reuters report states that in 2012, when the Nirbhaya incident happened, India recorded around 25,000 rape cases annually. Since then, the average has largely remained the same - 30,000 cases, barring the COVID period when there was a drastic fall due to lockdown restrictions. The number of cases was the highest in 2016 - 39,000. In 2018, on average one woman reported a rape every 15 minutes in India.
The conviction rates for rape ranged between 27%-28% from 2018-2022.
However, simply relying on NCRB data is also problematic since it only records reported cases. Women hardly report sex crimes for various reasons - including societal shame and hence, the number could be much higher.
According to Project 39A’s Annual statistics on Death Penalty in India, at 561 inmates, the death row population was the highest in 2023. The same year also saw “a noticeable decrease in the disposal of cases by the High Courts”.
Significantly, 2023 saw the lowest number of appellate court confirmations of death sentences since the compilation of our Annual Statistics in 2016, the report read.
“While the trial courts imposed 120 death sentences in 2023, the appellate courts remained reluctant to use the death penalty. The Supreme Court did not confirm any death sentence in 2023. In the High Courts, only one death sentence was confirmed by the Karnataka High Court in a murder simpliciter case. In doing so, 2023 marks the lowest rate of death sentence confirmations by the appellate courts since 2000, the report further read.
In fact, in the past six years, the Supreme Court has affirmed only seven death penalty cases. In fact, the Supreme Court in 2023 acquitted nearly 55 percent of the death row prisoners (six prisoners) after it recognised serious lapses in police investigation and appreciation of evidence by trial courts in death penalty cases.
Need to change the way we look at Rape to get effective solution
To address rape effectively, experts emphasize the need to understand it beyond sexual gratification. Professors Vijay Raghavan and Kumar Askand Pandey describe rape as a weapon of power, humiliation, and dominance rather than mere sexual violence. “It’s a backlash against women asserting their independence,” Raghavan explained, stressing the need for an attitudinal shift in how society perceives gender and power dynamics.
In 2023, the Supreme Court observed also highlighted how sexual violence is used as a tool of subordination during sectarian strife, reflecting the deep-seated power imbalances that fuel such crimes.
“In times of sectarian violence, mobs use sexual violence to send a message of subordination to the community that the victims or survivors hail from. Such visceral violence against women during conflict is nothing but an atrocity,” Chief Justice of India DY Chandrachud had said.
Pandey, a law professor at Lucknow’s RML National Law University said those who passed the law and those who framed the [Aparajita] law are aware of this. “Despite this, it has been introduced. So what else can be it, if not playing to the gallery,” the professor said.
Professor Vijay Raghavan said rape is more about power than about sexual lust. “Rape is not necessarily about sexual urges, it is also about retribution, and asserting male dominance. Men are reacting to the growing autonomy of women with violence - the only way they have been socialised to express their dominance. Women end up facing the backlash for asserting their independence,” he added.
Raghavan, who teaches at the TISS Centre for Criminology and Justice criticised the use of harsher laws as a political tool. “This is often a tactic by governments to pacify public outrage, offering quick-fix solutions that don't address the root of the problem,” he told BOOM.
Senior advocate Shobha Gupta expressed deep concern over the government's failure to ensure women's safety. "By not providing basic protection, you deny women their constitutional right to feel secure," she said, adding, "You fail in your constitutional duty if you don't protect half the population."
Gupta stated she would support the harshest punishments, but only if they could guarantee a complete end to sexual assault. She questioned the effectiveness of such measures: “We’ve seen this with legislative changes in 2013, 2018, and the new BNS, but have these amendments stopped sexual violence?”
Overhaul of criminal justice system need of the hour
Experts call for a complete overhaul of the criminal justice system, rather than just tougher laws. Professor Vijay Raghavan pointed out the lack of resources—such as forensic labs, courtrooms, and legal aid lawyers—as significant barriers to justice. He noted that despite funds allocated for women’s safety, like the Nirbhaya Fund, resources are often misused or under utilised, indicating a failure of systemic implementation.
In 2013, post-Nirbhaya, the Centre created the Nirbhaya Funds to support initiatives that would aid and help improve women’s safety. “The funds were used to buy CCTVs and vehicles for night patrols instead of being used for human resources,” Raghavan said.
“We need robust mechanisms, not just new laws,” said Raghavan while advocating for better-trained human resources, gender sensitization programs, and addressing systemic inefficiencies in policing and judiciary.
However, despite the pitfalls, some have expressed hope for the Aparajita Bill as it “marks a crucial advancement in protecting women and children”.
“Though death penalty is not alien to our existing Legislation, the Aparajita Bill is seen as an improvement because of its stricter penalties, stronger victim support systems, and focus on fast-track courts, setting it apart from the more general provisions of the law. Its specialization makes it a potentially more effective tool for combating crimes against women and children,” advocate Kashish Seth told BOOM. However, Seth, an associate with Karanjawala and Co., cautioned that the success of the law will depend on how effectively it is implemented and enforced in practice.