PUDR opposes the passage of The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024, which amends the Bharatiya Nyaya Sanhita (BNS), 2023, and the Protection of Children from Sexual Offences (POCSO) Act, 2012, in their application to West Bengal. The Bill enhances punishments for sexual offences, introduces death penalty as the maximum sentence under the majority of the provisions, and fixes mandatory death penalty for rape which results in the death of the woman or causes her to be in a vegetative state. Following the public outrage against the rape and murder of a trainee doctor in Kolkata on 9 August, and the mishandling of the case investigation by the police, on 2 September the state legislative assembly passed the Aparajita Bill with an object of “creating a safer environment for women and children” on the belief that “maximising the punishment for sexual offences will deter such deplorable acts”. The BNS while replacing the Indian Penal Code, had already increased the number of offences punishable by death from 11 to 15. Aparajita Bill increases the number to 18 along with the introduction of mandatory capital punishment for rape resulting in death/vegetative state, disregarding the fact that mandatory death penalty in India has been struck down as unconstitutional by the Supreme Court in 1983 in Mithu vs State of Punjab.
The Bill needs to be seen as part of the broader pattern of reactive measures adopted by the governments each time a horrific incident of sexual crime comes to light. Much like the Criminal Law Amendment Act, 2013, in the aftermath of the Nirbhaya incident, or the Andhra Pradesh Disha Bill, 2019, in response to the gang rape of a veterinary doctor, it represents a hasty response to public outcry by the state, to pacify protests through promises of harsher punishments, but without achieving the desired outcome of reduction in crimes against women.
The narrative remains that the death penalty for rapists, and harsher penalties in general, have a deterring effect on crime. Every statistical figure available, however, defies the claim that governments continue to make about the death penalty being a deterrent. The pattern of trial court sentencing in India reveals that death penalty is awarded liberally by lower courts every year. As per the latest Annual Prison Statistics 2022, published by the NCRB, 190 prisoners were awarded capital punishment in the year, and together with prisoners from previous years, a total of 544 prisoners were serving capital punishment by the end of 2022. This number has risen to 561 by the end of 2023, as per the Annual Statistics on Death Penalty published by Project 39A, which is the highest number of death row prisoners in India in nearly two decades. In 2023, out of 120 death sentences awarded by trial courts, 64 were given in cases of sexual offences, making it the largest category of crimes in which death penalty is served. The rise in the number of death sentences coincides with the rise in the number of incidences of sexual crimes punishable by death in India. As per the latest NCRB records, in 2022, reported cases of rape with murder and gang rape were 248. Given that many cases of sexual crimes go unreported in India, the actual numbers will be much higher and are enough to bust the myth that death penalty acts as a deterrent.
The other side of the sentence of death, which is frequently glossed over in the emphasis on it being a deterrent, is its irrevocability, in cases of errors of judgment. The higher judiciary in its review of the sentences of death awarded by the trial courts has consistently pointed out errors of judgment. As per the Death Penalty Report, 2023, of the total number of death penalty cases disposed by the High Courts involving sexual offences, the High Courts confirmed death penalty in zero cases, commuted the sentence to life in 12, and ordered acquittal in 9 cases. The same pattern is visible in the Supreme Court sentencing. Hearing cases in appeal pending from previous years, in 2023, the SC did not confirm death penalty in any of the cases of sexual offences, but ordered acquittals in 4 sexual offences cases. In 3 out of these 4 cases, SC noted serious lapses in police investigation which were ignored by the trial courts and High Courts alike. In one case, the accused was found to be a juvenile who had been awarded death penalty.
While the error of judgment affects the justice system at large, its ill effects are compounded in case of a death sentence because of its irrevocable nature. The case of Dhananjoy Chatterjee hasn’t been forgotten, whose execution was questioned by a report from scholars of the Indian Statistical Institute (Kolkata), exposing the infirmities in investigation and trial, 11 years after he was hanged for rape and murder. The fact that the Aparajita Bill not only underscores the death penalty as the preferred sentence but introduces a fast-track system of justice, the dangers of miscarriage of justice are exacerbated. The Bill mandates the completion of the investigation within 21 days with a maximum extension of 15 more days, and the trial to be completed within 30 days of the filing of the charge sheet. That fast-track justice system could lead to botched investigations and compromised trials through rushed proceedings, is not merely speculative.
PUDR has long opposed the death penalty as a form of punishment due to inherent possibility of miscarriage of justice and the irreversibility of errors. If deterrence is an argument in favour of the death penalty, the statistics reveal the contrary and only highlight the deficiencies and maladies of a justice system where the possibility of an innocent being sent to the gallows is ever-present. We urge people to see that Bills such as the Aparajita, and on earlier occasions those passed by Andhra Pradesh and Maharashtra, are deliberate attempts on the part of the governments to deflect demands for an accountable law and order system committed to fair investigation and trial.
We demand:
- The withdrawal of the Aparajita Bill
- Abolition of Death Penalty
- Fair investigation and trial in cases of sexual violence
