High drama under which Mamta Banerjee-led West Bengal assembly tabled and passed the anti-rape bill was nothing short of an eyewash and a cruel joke on the protesting doctors already shaken by barbaric rape and murder of their colleague at RG Kar Hospital in Kolkata, West Bengal, on 9 August 2024.

The Bill failed to convince protesting doctors to suspend their agitation, something Mamta needed desperately as an earlier attack by her party TMC workers on doctors at the protest venue failed to  break their agitation.

But more seriously, the Bill also failed on the legal front on several counts. The new provisions are such that they can not  implemented by any court or police. The very sustainability and Constitutional validity of the Bill is in question. In all likelihood, it will not survive the scrutiny of the President, or the Supreme Court.

Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024 has so many critical lacunae that one wonders if there was there was any legal worth of the proposed law, apart from the political damage control by Mamta’s TMC. There is a doubt if Mamta has achieved that also.

The whole drama created by Mamta of bringing up so-called “harsher” law against rape is actually hollow. A provision of death sentence to rapist was made in the Bill as a knee-jerk response to the doctors’ call for justice to the  victim. But a closure look exposes the hypocrisy of tokenism.

Can making rape punishable with death help?

People taking to streets, seething for death for rapist is understandable. But can it actually be made into a law? Experts say no. Why? Because once the rapist knows that he will get death for his crime, then what stops him from finishing the victim? The rapist in his criminal frenzy may think it the best way to escape gallows is to finish evidence by finishing the victim.

On the other hand, if the victim is killed during the crime, death penalty to rapist can still be awarded by invoking the other provisions in the law. Sector 302 of IPC which is now Section 103 of BNS (Bharatiya Nyayy Samhita) provides for capital punishment in such case.

Some criminal justice experts also believe a life sentence, without remission, can make the ends of justice meet as the rapist will never get out of the prison till he dies inside the cell. They opine this can be harsher and a very grinding punishment than execution that hurts only for a moment.

Death has been awarded earlier in rape under existing laws

Does a special rape law really need a death sentence as provision? May be not. There are enough provisions under the existing laws. The case in point is of

rape and murder of 14-year-old schoolgirl Hetal Parekh by security guard Dhananjoy Chatterjee in Kolkata in on 5 March 1990. The trial court on 11 January 1994, not only convicted Dhananjoy under Section 376 IPC for rape, but also sentenced him to death under Section 302 IPC for her murder.

“Rarest of the rare” case

Dismissing the rapist’s appeal against death sentence, the Supreme Court bench presided by Justice A S Anand noted,” The offence was not only inhuman, and barbaric but it was a totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscious.”

“There are no extenuating or mitigating circumstances whatsoever in the case… a cold blooded pre-planned brutal murder, without any provocation, after committing rape on an innocent and defenceless young girl of 14 years, by the security guard certainly makes this case a ‘rarest of the rare’ cases which calls for no punishment other than the capital punishment and we accordingly confirm the sentence of death…”

The Supreme Court dismissed his appeal. He was executed on 14 Aug 2004.

Hetal Parekh case is an example where the rapist was awarded death with the existing laws, without any need to prop up so-called “harsher” and  bogus laws.

There is little doubt that even without Mamta’s Aparajita Bill, death sentence would be awarded to rapists who broke female doctor’s pelvic girdle by pulling her legs apart. Shards of glasses were found in her eyes.

Political gimmickry, similar bills in past never became law

Farce of “political gimmickry”, as the West Bengal Governor C V Ananda Bose said of Mamta’s bill, is unmissable. Aparajita anti-rape bill was nothing but Mamta’s media lollypop, to divert attention from the protests. As soon as bill was passed, one could see some journalists started prancing, holding it out … wow, now rapist will be hanged, yayy! Really?

Bill will not become law till President has signed it. Similar death-calling bills from other states such as Andhra Pradesh and Maharashtra have not been signed by President till now. Also, President acts on the advice and aid of Council of Ministers which is the Centre government. Andhra Pradesh Disha Act Criminal Law Act, 2019 of Andhra and Shakti Criminal Laws Bill, 2020 of Mahashratra, calling for death to rapist, are lying with President since 2020. Both do not pass the basic objection, what stops an accused from killing the victim in a bid to finish the evidence altogether because he knows he will be hanged if she stays alive.

Can State really modify a Central law? No

There are some lacunae deliberately left there in Aparajita Bill, it seems. Some clauses like time limit to close investigation has been reduced by West Bengal govt to 21 days from 60 days of Central law which is Bhartiya Nyaya Samhita. But in a federal structure, State assembly can not do upstream revisions to the Central law enacted by the Parliament. This a Constitutional taboo which assembly can not break. Because of this, it is bound to be struck down by Supreme Court if it comes up for review after a challenge by the accused.

Some ask why it will be challenged. Any person facing death knows he will be gone forever, will do everything to save himself from execution. So he will try every appeal available to him. In fact, as per Constitutional and legal provisions, even if convict is not appealing against death, State must help him, provide free legal help, etc.

Bill’s death sentence provision can not be implemented

Let’s examine its provisions that promise death sentence to rapist. The Bill says death will awarded if victim dies, or becomes vegetable (slips into coma). Now, no doctor on this earth has been able to decode coma (vegetable state). Coma remains a paranormal medical mystery, there is no medicine for coma, one can gain consciousness from coma in few days, or may live in state of coma for rest of life on hospital bed and eventually die in that state.

Now, what if the victim comes alive (regains consciousness) from coma after the accused is hanged to death?