Bengal’s ‘anti-rape’ law will actually reduce convictions, say experts. Here’s why

The so-called anti-rape bill passed by the West Bengal Legislative Assembly on Tuesday is a political stunt that will actually make it harder to secure convictions in rape cases, legal experts have warned.

The bill prescribes the death penalty for rape. It also proposes special task forces and special courts in each district in the state to investigate and try rape and acid attacks on women. It has mandated that the police complete investigations of such offences within 21 days and that the accused be tried within 30 days.

Experts noted that though punishments for such crimes were made much more stringent in 2013 after the Delhi gangrape case the previous year, this has not had any significant impact on lowering the number of sexual assaults on women.

“Practically speaking, the higher the punishment, the less certain a conviction becomes,” said Delhi-based Senior Advocate Rebecca M John.

Instead, the experts said that better policing, enhancing the capacity of the criminal justice infrastructure and other non-legislative measures are more likely to deter crimes against women.

Bill’s provisions

The Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, was passed weeks after a junior doctor was raped and murdered in Kolkata’s RG Kar Medical College and Hospital on August 9.

The legislation seeks to give discretion to courts to award the death penalty for the offences of rape and sexual offences against children.

At present, under the Bharatiya Nyaya Sanhita, among sexual offences against women, only the rape of a girl under 12, the gangrape of a girl under 18 years, the causing of injury during rape that may cause death of the victim or cause her to be in a persistent vegetative state, and a second conviction for rape may be punishable with death. The other rape-related offences under the Bharatiya Nyaya Sanhita and the Protection of Children from Sexual Offences Act are punishable with at most imprisonment for the remainder of the convict’s life.

The Bengal bill also prescribes a compulsory death penalty for the offence of committing rape and inflicting injury that results in the death of the victim or causes her to be in a vegetative state.

This is an unprecedented penal provision since no other offence in any other law has a mandatory death sentence.

The bill proposes to shorten the maximum time in which rape offences against women and sexual assault of children must be investigated from two months from when the first information report has been filed to less than half of it – 21 days. It mandates that courts conclude the trials of rape and acid attack cases within 30 days from when the chargesheet has been filed, halving it from the present time frame of two months.

West Bengal’s ruling All India Trinamool Congress Party has been urging the Union government to adopt similar measures across the country.

‘Ineffective, will reduce convictions’

Legal experts that Scroll spoke with severely criticised the bill, questioning its efficacy. They variously describing it as “a political gimmick”, “patronising”, “outrageous”, “disappointing”, “a knee jerk reaction” and “a form of showmanship”.

“The death penalty is awarded in the rarest of rare cases,” Rebecca John explained. “If death penalty or imprisonment for life are the only options before a judge, they will demand an excessively high standard of proof.”

Delhi-based advocate and women’s rights researcher Mihira Sood agreed. “When the death penalty is sought, one cannot expect shortcut justice,” she said. “In such cases, much greater judicial scrutiny comes into play. Judges might hesitate to convict, resulting in lower conviction rates.

She added: “This is not a serious measure. It won’t have any impact.”

Mumbai-based women’s rights lawyer Flavia Agnes told Scroll that after high-profile crimes against women take place, the death penalty and time-bound investigations and trials are always demanded.

But, she noted, their effectiveness is doubtful. “How often is the death penalty given?” she asked.

In the past ten years, only five persons have been executed by the death penalty in India after being convicted of crimes. At the end of 2021, there were 488 prisoners on death row across India.

All three experts made references to the criminal law amendment passed in 2013, in the wake of the 2012 Delhi gang rape and murder, popularly known as the Nirbhaya case and the public outrage it triggered.

The amendment broadened the scope of and increased punishments for offences against women. However, this has failed to significantly increase conviction rates for such crimes. In fact, a study of trial courts in Delhi found that convictions decreased considerably after the amendment.

“Without systematic changes, the only answer that the government has is to increase penalties,” rued John. “When things don’t change even after providing death penalty, what other option will the government have?”

Unrealistic timelines

The experts also criticised the timelines set by the bill for completing investigations and trials, contending that they were unrealistic.

“Time-bound investigations are a wonderful idea in theory, but can only be implemented properly when our infrastructure matches the needs of the population,” said Sood.

She added: “Public discourse must be measured and educated about what is the reasonable length of a trial.”

John noted that the Indian police does not “have a great track record in evidence collection”, which is “a difficult and cumbersome process”.

She said that instead of setting unreasonable timelines, police personnel should be trained to collect evidence more efficiently, a sufficient number of forensic laboratories should be set up to issue reports within the time frame, and storage facilities for evidence with air-conditioning should be constructed to preserve evidence.

She also flagged the possibility of investigating police officers blaming innocent persons under pressure of complying with these timelines.

Sood noted that delays are more likely to be due to the lack of infrastructural capacity rather than intentional tardiness or apathy by the courts or police. “Not every step can be fast-tracked,” she said.

She added, “The capacity of our system must be increased to match its caseload.”

Reforms actually needed

Instead of instinctively reaching for the death penalty to quell public outrage in cases of crimes against women, there are several systemic and structural solutions to these attacks, experts said.

India needs more regular courts with trained judges, rather than fast-track courts, said Sood.

Agnes’ suggestion was one which is widely accepted in the criminal justice world as a deterrent. “We need certainty of punishment, not higher punishment,” she said.

John said that the solution should be prevention rather than prosecution. “There should be socio-cultural conversations about how we treat women and why they face such attacks,” she said.

She added: “The answer to brutal crimes is better policing, better care, better safety, constitutional equality between men and women.”