The government of West Bengal is set to present a bill against rape in the state Assembly on Tuesday following the public outcry following the rape and murder of a medical intern at Kolkata’s RG Kar Medical College and Hospital on August 9.
Legal experts stated that even though the state government is correct in proposing the amendment, it still requires approval from the President of India.
WHAT DOES THE BILL CONSIST OF?
The West Bengal government plans to implement a new anti-rape bill that calls for rapists to face the death penalty. On August 28, the state Cabinet authorized a suggestion for a new bill to be implemented in order to prevent rape and impose harsher penalties for such offenses.
On August 28, Chief Minister Mamata Banerjee stated that the state government would have implemented the death penalty for the accused in the rape and murder case of the trainee doctor if it had the authority.
Had the state government possessed authority, the accused in the doctor’s murder would have been executed within a week. She stated that a campaign will be initiated to demand the death penalty for the suspect in the doctor’s rape and murder case.
KEY CHARACTERISTICS OF THE LEGISLATION
The proposed law aims to punish all those convicted of rape with the death penalty and ensure that trials in rape cases are completed quickly.
WHAT DOES THE PROCESS INVOLVE?
The state’s proposed amendment would not align with the punishments outlined in the new criminal laws of BNS and BNSS, necessitating approval from the President according to Article 254(2) of the Constitution.
According to Article 254(2), a state legislature can enact a law that goes against a central law in the concurrent list, provided that the state law is approved by the president. This indicates that the state’s law will take precedence in the state, even if it differs from the federal law, as long as it has been endorsed by the President.
LEGAL PROFESSIONALS PROVIDE THEIR INPUT
Supreme Court lawyer Sanjay Ghose commented on the West Bengal government’s decision to present an anti-rape bill in the Assembly, stating, “As criminal law falls under the concurrent list, both the state and central governments have the authority to pass legislation on criminal matters.”
Ghose explained that in cases where a central law already exists in a particular field, the only way for a state government to enact a state amendment is by following Article 254 and obtaining approval and agreement from the central government.
He mentioned that the West Bengal government has the authority to draft and submit its own state amendment to the President, staying within the boundaries set by the Constitution. He stated that if the president approves the state’s amendment, West Bengal will come out on top in that particular situation.
Regarding the question of a set deadline for the President to provide approval, Ghose stated, “The President follows the guidance of the central government.” There is no requirement for him or her to give consent. Furthermore, the Constitution does not specify a deadline for the central government to complete this process.
Echoing the same feelings, Supreme Court Advocate-on-Record Ashwani Dubey stated, “The Constitution does not specify whether the President is required to approve or reject such a reconsidered bill.”
Dubey acknowledged the legality of the amendment but also raised concerns about the procedure for calling the special Assembly session.
The only person with the authority to call the session is the Governor according to Article 174. “He mentioned that the state government has convened the session independently, which is a questionable matter,” he stated.
The bill would need approval from the central government as well, as it falls under the realm of criminal law, according to Supreme Court advocate Satyam Singh Rajput.
Next, the Ministry of Home Affairs will examine the suggested legislation to ensure that it conforms with current national laws and policies. Additionally, he informed India Today TV that the bill must also obtain the President of India’s approval in order to officially become a law, even if the central government sanctions it.
Rajput emphasized that the Disha bill passed by Andhra Pradesh in 2019 is currently pending presidential approval, stating that the entire process is uncertain and may take a long time.
He also noted that the President has the freedom to take as much time as needed to review the legislation, without any time limits.
Meanwhile, Siddharth Luthra, a lawyer from the Supreme Court, expressed doubts about the necessity of introducing legislation against rape.
I fail to understand the reason behind this legislation. The BNS and POCSO are thorough. The areas of human behavior that are addressed do not have solutions in legislation. However, if carried out, it would need the President’s approval.
Supreme Court Advocate-on-Record Ibad Mushtaq stated that the state amendment would impose penalties conflicting with those provided under the BNS/BNSS principle. Presidential approval is needed for criminal laws on the concurrent list as stated in Article 254(2).
Mushtaq explained that after receiving a state amendment for assent, the President typically consults with the nodal central ministries for input on the amendments before making a decision.
By
~ Leevanshiqa,
A student at – Faculty of Law, Kalinga University, Raipur
FREQUENTLY ASKED QUESTION(S) [FAQ’s]
Q. Life sentence without parole for those convicted
Ans. The bill stipulates a life sentence without parole for those convicted of rape, along with a fine.
Q. Capital punishment for those convicted if victim is left dead or in vegetative state after the crime.
Ans. The 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, along with a fine.
Q. Tighter rules under POCSO Act
Ans. The provisions under POCSO Act will be further tightened in the state.
Q. Aparajita Task Force
Ans. A task force will be formed under the provisions of the bill to punish the accused within 21 days of the preliminary report. Any trial thereafter must conclude within 30 days.
Q. Routes on which doctors and nurses travel will be provided with ample security
Ans. For this, the state’s government has sanctioned Rs 120 crores.
