<p>The West Bengal Assembly on Tuesday unanimously passed the state anti-rape law ‘Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024’, with full support from the Opposition. The new Bill seeks capital punishment for persons convicted of rape if their actions result in the victim’s death or leave her in a vegetative state. </p>
<h3>What Are The Provisions Of Aparajita Bill</h3>
<p>The Mamata government summoned a two-day special Assembly session, in the wake of the rape-murder of a woman doctor at the state-run RG Kar Medical College and Hospital last month, to pass the Bill. West Bengal CM Mamata Banerjee speaking in the State Assembly said the Bill aims at “quick investigation, fast justice delivery and enhanced punishment of the guilty.”</p>
<p>Banerjee said that through the amendments to the rape provisions under the new criminal laws, her government has tried to plug the loopholes in the central laws.</p>
<p>According to the West Bengal Government, the ‘Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024,’ aims to strengthen protections for women and children by revising and introducing new provisions related to rape and sexual offences under BNS, BNSS and POCSO Act.</p>
<p>Along with providing for capital punishment for rape and sexual offences, the Aparajita Bill states that probes into rape cases must be completed within 21 days of the initial report. At present, there is a two-month deadline. The Bill also proposes to penalise printing or publishing of any matter relating to court proceedings without permission with a punishment of imprisonment of three to five years and fine. The law also provides for a life sentence without parole for rape convicts.</p>
<p>Earlier, while announcing the draft Bill the CM had said that if the Governor does not give his assent, she will sit on a strike in front of his office. But, is the Governor’s assent enough for such a Bill to become an Act? Can a State government pass such a law?</p>
<p>Here’s what the Indian Constitution says:</p>
<h3>Can the State Government Amend Criminal Laws</h3>
<p>The State government can amend the criminal laws as they fall under the Concurrent List of the Seventh Schedule of the Indian Constitution. However, the Constitution has ensured supremacy to Parliament on concurrent list items in case of a conflict. Which means, if there is a conflict between Central and State law, the Central law will prevail over the state law.</p>
<p>The 7th Schedule under Article 246 of the Constitution deals with seperation of power between Centre and States. It contains three lists-Union List, State List and Concurrent List.</p>
<p>The Union List details the subjects on which only Parliament can make laws. The State List details subjects on which the state government can make laws and the Concurrent List consists of subjects in which both Parliament and state legislatures have jurisdiction to frame laws.</p>
<p>Article 254 of the Constitution deals with cases of inconsistency between laws made by Parliament and laws made by the Legislatures of States. Here’s what it says:</p>
<p>(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), <strong>the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State</strong> shall, to the extent of the repugnancy, be void.</p>
<p>(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, <strong>if it has been reserved for the consideration of the President and has received his assent, prevail in that State</strong>;</p>
<p>(3) Nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.</p>
<h3>So, Is Governor’s Assent Enough?</h3>
<p>No, the Governor’s assent to such a Bill is not enough for it to become an Act. As mentioned in the Clause of (2) of Article 254, for a State Bill amending Central Law, an assent from the President of India is required. In such a case, the Governor will send the Bill to the President and the President will act on advice of the cabinet ministers.</p>
<h3>Is West Bengal Government First One To Bring A Law On Capital Punishment For Rape?</h3>
<p>The Aparajita Bill by the state of West Bengal is not the first Bill to provied for Capital Punishment for rape.</p>
<p>Currently, Under Section 64 of BNS a rape convict can be punished with a jail term of 10 years to life imprisonment. And Under Section 66 of BNS, death penalty can be awarded for rape and murder or where the victim is left in a vegetative state. The Aparajita Bill by the West Bengal government seeks to impose capital punishment in all these cases. The bill will also seek death for gang rapes.</p>
<p>West Bengal is not the only state to have passed such a Bill. In 2019, Andhra Pradesh government also passed the Disha Bill, making rape and gang rape punishable by death. In 2022, Maharashtra passed the Shakti Criminal Laws Bill, which sought death penalty for rape. Both these bills are yet to receive a nod from the President.</p>
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