Can Bengal’s Aparajita anti-rape bill override Bharatiya Nyay Sanhita and impose capital punishment for rapists?

Kolkata doctor rape case: The West Bengal Assembly on Tuesday unanimously passed the Aparajita anti-rape bill, that seeks capital punishment for rapists in the state. Speaking in support of the bill in the state Assembly, Chief Minister Mamata Banerjee said, “In the Kamduni case (the North 24 Parganas rape), we demanded capital punishment... but the Supreme Court went against the High Court and the matter is pending. No one talks about what happened in Unnao (and) the victim of Hathras did not get justice.” 

The anti-rape bill was moved in the wake of widespread and continuing protests that have rocked West Bengal in the aftermath of a Kolkata doctor's rape and murder.

The post-graduate trainee doctor at Kolkata's RG Kar Medical College and Hospital was found dead in a seminar hall of the institute on August 9.

How can the anti-rape bill become law?

While the Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment Bill 2024) has constitutional validity, it needs the President's assent to become a law in West Bengal.

Any amendments made by the state that impose penalties differing from those outlined in the new Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) must receive presidential approval as stipulated by Article 254(2) of the Constitution.

This provision allows state legislatures to enact laws that conflict with central legislation on concurrent matters, provided these laws are sanctioned by the President. Once approved, the state law will take precedence within that state, notwithstanding its divergence from federal statutes.

However, it is to be noted that according to the Consitution, there is no time limitation or obligation for the President of India to give their assent.

What Aparajita anti-rape bill proposes?

• The anti-rape bill proposes to amend the recently passed Bharatiya Nyay Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 laws and the POCSO Act 2012 “in their application to the state of West Bengal to enhance punishment and to constitute the framework for... expeditious investigation and trial of the heinous act of violence against women and children.”

• The bill also seeks capital punishment for rape convicts if their actions result in the victim's death or leave them in a vegetative state

• The anti-rape bill also stipulates a life sentence without parole for other perpetrators.

What Bharatiya Nyay Sanhita proposes as punishment for rapists?

The Bharatiya Nyaya Sanhita (BNS) 2023 outlines multiple punitive measures for those convicted of rape. However, it does not mention capital punishment.

• The penalty for rape includes a minimum of 20 years of rigorous imprisonment, which may extend to life imprisonment, in addition to a monetary fine.

• The punishment for gang rape includes a minimum of 20 years of rigorous imprisonment, which may extend to life imprisonment, along with a monetary fine.

• The punishment for raping a girl under 12 years old is a minimum of 20 years of rigorous imprisonment, potentially extending to life imprisonment or death, along with a fine intended for the victim’s medical expenses and rehabilitation.

(It is important to note that neither the Bharatiya Nyaya Sanhita nor the Aparajita Anti-Rape Bill specifies penalties for rapists who attack transgender individuals.)