Kolkata: In the wake of the Kolkata doctor rape and murder case, the West Bengal government led by Chief Minister Mamata Banerjee has called for a special sitting of the state legislative assembly to pass a stringent anti-rape law, bringing the offence of rape on par with that of murder and making it punishable with the death penalty.
According to reports, the new anti-rape law proposes a stricter penalty in cases of rape and murder, like the death penalty or life imprisonment, provision for collection of compensation from the family of the convict and time-bound conclusion of the trial in such cases.
Though the effort by the West Bengal Chief Minister is laudatory, the new law may run into some difficulties in implementation.
Disha and Shakti bills
This is not the first time that stringent anti-rape law based on the theory of deterrence has been proposed or passed by state governments. Similar attempts were made by the Andhra Pradesh and Maharashtra governments in the past.
In 2019, following the brutal incident of rape and murder of a veterinarian, the Andhra Pradesh government had passed the Disha bill 2019, making offences of rape and gang rape punishable with death penalty.
The anti-rape bill by the state government was called Disha bill, as a tribute to the rape victim, who went by the name of Disha.
In the Disha Bill, the time for conclusion of the trial and pronouncement of judgment was also fixed at 21 days from the commission of offence.
An identical bill was passed by the Maharashtra government too in 2020. The Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020 ,which made rape as an offence punishable with death penalty. The Shakti bill also fixed time line for investigating the offence and passing of verdict by court.
Disha and Shakti bills are currently pending
However, both these laws despite being passed by the state legislature were sent by the governors of the state for presidential assent and these bills are pending with the President of India for her assent.
The West Bengal government’s law on similar lines which is being contemplated and could be passed may meet the same fate.
However, there are two major problems with such laws which have been passed by the state governments.
First, fixing of timelines for probe and completion of trial and second, mandatory death penalty for the offence of Rape.
Fixed timelines for probe and trial
It is said that justice hurried is buried and in the zeal to provide speedy justice to the victim or the family of the victim, sometimes the rushing of criminal proceedings can result in undermining justice.
Undoubtedly, quick and prompt trials in criminal offences are the need of the hour to repose peoples faith in the judicial system, the hurried process must not result in fairness which is the basic element of justice delivery system.
Courts, too, have in the past cautioned the probe agencies and courts not to rush in deciding cases where there is public outcry.
On death penalty for rape
The Supreme Court of India has time and again made it clear that as far as death penalty is concerned, it can only be given for offences which the statute approves and death penalty is only to be given in the rarest of the rare cases.
As far as the Bharatiya Nyay Samhita, penal law of the country, is concerned, there is no death penalty punishment for rape cases.
Section 64 of BNS says that rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
But section 65 of BNS says in case of rape on a woman under sixteen years of age, punishment will be not be less than twenty years, but may extend to imprisonment for life.
But in case of rape on a woman under twelve years of age, the maximum punishment is death penalty.