Aparajita Bill: A clear case of Constitutional overreach

Mamata Banerjee in West Bengal Assembly during debate on Aparajita Bill (Photo: West Bengal Assembly)

The recent enactment of the Aparajita: The Anti-Rape Bill by the Government of West Bengal marks a significant shift in legislative policy by mandating death sentences for those convicted of rape that results in the victim’s death or leaves them in a persistent vegetative state. This amendment to Section 66 of the Bhartiya Nyaya Sanhita, 2023, as the Indian Penal Code is now called, represents a stern stance on one of society’s most severe crimes.

However, this measure prompts a critical examination whether we are we, as a society, focusing excessively on harsher penalties while neglecting the deeper systemic causes of rape, such as entrenched patriarchal attitudes, insufficient sex education and failures in law enforcement. Another question that begs examination is whether the imposition of mandatory death sentences genuinely reflects a commitment to justice, or  it is a drastic measure aimed at placating public outrage, offering only the illusion of closure for victims.

A superficial approach to justice

The Aparajita Bill, with its provision for mandatory death sentences in certain rape cases, warrants a rigorous scrutiny. It fundamentally undermines judicial discretion, a principle central to the “rarest of rare” doctrine established in the Supreme Court ruling in Bachan Singh v. State of Punjab in 1980.

This doctrine governs the imposition of capital punishment, asserting that the death penalty should not be the default but reserved for cases where no alternative sentence is appropriate. By mandating a blanket death sentence in specific circumstances, the Bill risks overlooking the unique details of each case, thereby reducing judicial oversight to a mere formality.

Moreover, the irrevocable nature of the death penalty, combined with the potential for judicial errors, raises substantial constitutional concerns. The Supreme Court’s ruling in 1983 in Mithu Singh v. State of Punjab struck down a similar mandatory death penalty provision, citing its unconstitutionality for removing judicial discretion. The Aparajita Bill, by enforcing a mandatory death penalty only in certain scenarios, contradicts this established precedent and undermines the constitutional principles of fairness and judicial discretion.

The Supreme Court’s pronouncement in Jagmohan Singh v. State of Uttar Pradesh in 1972 underscores the necessity of judicial discretion. The Court emphasised that criminal law requires judges to exercise wide discretion in sentencing, ensuring that punishment reflects the specific circumstances of each case. The Aparajita Bill’s mandate for death sentences in specific rape cases erodes this crucial safeguard. By removing the judiciary’s ability to consider individual circumstances and the broader context, the Bill reduces sentencing to a rigid, inflexible formula. This erosion of discretion contravenes the “rarest of rare” doctrine and undermines the principles of equitable justice.

Furthermore, the Bill’s mandatory death penalty provisions strip convicted individuals of their right to present mitigating factors and argue against a death sentence. This removal of essential safeguards jeopardises the fairness of the judicial process, transforming justice from a thoughtful, nuanced evaluation into a mechanical and predetermined exercise. Such an approach undermines the core principles of justice, which demand that sentencing reflects both the severity of the crime and the unique circumstances of each case.

Constitutional validity of Aparajita Bill

Despite the Supreme Court’s affirmation of the death penalty’s constitutionality in Jagmohan Singh’s case, it did not endorse mandatory death sentences. The decision in Mithu Singh’s case further reinforced this position by striking down a law that mandated death as a punishment. The Aparajita Bill, which proposes mandatory death sentences for perpetrators of rape resulting in the victim’s death or persistent vegetative state, raises significant constitutional concerns. By enforcing a mandatory death penalty only in certain circumstances, the Bill creates a troubling distinction based on the victim’s condition. This selective application undermines Article 14 of the Constitution, which mandates equal protection under the law by requiring reasonable classification. It also compromises Article 21’s guarantee of a fair trial by imposing a uniform punishment without regard to individual circumstances.

Notification of the bill in West Bengal Gazette

Additionally, the Union Government’s 2019 bill aimed at abolishing the death penalty, aligned with UNGA Resolution 65/206, reflects a growing legislative and international consensus questioning the death penalty’s deterrent effect.

This perspective challenges the notion that the death penalty is a necessary instrument of justice rather than a form of retributive revenge. By disregarding this evolving legislative context and established Supreme Court precedents, the West Bengal government’s push for the Aparajita Bill appears to be more of a political manoeuvre to appease public sentiment than a genuine effort to uphold the rule of law.

The Aparajita Bill, despite its ostensibly noble aim to address a grave crime, undermines the essence of justice by reducing courts to mere rubber stamps. Its mandatory death sentence provision represents a troubling constitutional overreach, compromising judicial integrity and fairness. Justice demands more than draconian measures, it requires a nuanced, balanced approach that addresses the root causes of crime and upholds the principles of equity and humanity.

The Bill’s focus on harsher penalties overlooks the underlying issues fuelling sexual violence, such as patriarchal attitudes, inadequate education, and systemic enforcement failures. While the Bill may cater to public outrage, it falls short of delivering genuine prevention and justice. Instead of relying solely on extreme punishments, a more effective strategy would involve comprehensive measures, such as mandatory self-defence education for girls and the establishment of specialised investigation units.

These approaches would contribute to a more holistic strategy for addressing sexual violence, fostering a justice system that is both effective and humane. Hence, in a country where the death penalty is reserved for the “rarest of rare” cases, mandating it as the sole punishment for rape amounts to a “one-size-fits-all” solution.

(Sonal Gupta is a practicing advocate at the Supreme Court of India. The views expressed here do not necessarily reflect those of Media India Group.)