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What are the major changes from existing law in the new Aparajita Bill?
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ON September 3, the West Bengal assembly made a significant legislative breakthrough by unanimously passing the Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) 2024.
This landmark Bill is a pioneering effort in India, marking West Bengal as the first state to amend Union laws addressing rape and sexual offences.
Introduced in the wake of the rape and murder of a 31-year-old trainee doctor at R.G. Kar Medical Centre and Hospital, the Bill has been hailed as both "historic" and a "model" piece of legislation by the state Chief Minister Mamata Banerjee, who dedicated it to the memory of the victim.
The passage of the Bill should be seen as another step to address deep-rooted sociological dimensions of rape in India. Rape is not merely a criminal act but an assertion of power and control, rooted in patriarchal structures that perpetuate gender inequality and violence.
This crime has far-reaching consequences, contributing to a culture of fear and oppression that restricts the autonomy and freedom of women. The symbolic naming of the Bill as 'Aparajita'—meaning 'undefeated'— resonates with the broader societal aspiration to empower women and dismantle these oppressive structures.
“This landmark Bill is a pioneering effort in India, marking West Bengal as the first state to amend Union laws addressing rape and sexual offences.
By introducing harsher penalties, including the death penalty for particularly heinous acts, the Bill sends a strong message about the unacceptability of gender-based violence. Additionally, the establishment of an Aparajita Task Force and enhanced security measures for women, particularly those in vulnerable professions, aims to create a safer environment, challenging the societal norms that often enable such crimes.
Chief Minister Banerjee's emphasis on the need for social reforms highlights the Bill's dual focus on legal deterrence and cultural change.
The Bill, therefore, stands not only as a legal instrument but as a catalyst for broader societal transformation. It seeks to address the structural inequalities that perpetuate sexual violence and to foster a society where women can live free from fear and violence.
This legislation is a crucial step forward in the ongoing struggle for gender justice in India, setting a precedent for other states to follow in the fight against sexual violence.
In this article, I have analysed the Bill specifically in the context of its amendments to the Protection of Children from Sexual Offences (POCSO) Act, 2012. The article seeks to examine how the Bill addresses gaps in the existing provisions under the POCSO Act, its potential impact on enhancing legal protections for children, and its effectiveness in deterring sexual violence against minors.
Additionally, the article explores the implications of these changes for the legal framework, assessing their significance in ensuring justice for child victims and setting a precedent for other states in India.
The Bill's key amendments to the Bharatiya Nyaya Sanhita 2023, Bharatiya Nagrik Suraksha Sanhita 2023, and the Protection of Children from Sexual Offenses (POCSO) Act 2012 are aimed at increasing the severity of punishments and expediting the judicial process.
The Bill increases the minimum punishment for sexual assault from three years to seven years, with the possibility of extending it up to ten years. This represents a substantial change from the existing legal framework, specifically under Section 8 of the POCSO Act, 2012.
Section 8 of the POCSO Act currently states that anyone who commits sexual assault against a child shall be punished with imprisonment for a term that is not less than three years, but which may extend to five years. In addition to imprisonment, the offender is also liable to pay a fine.
This enhanced punishment aligns with the clarion call of the Indian judiciary in the recent past, calling for more stringent action in cases of sexual abuse against children.
For example, in Alakh Alok Srivastava versus Union of India (2018), the Supreme Court emphasised the need for swift and stringent action against perpetrators of sexual crimes against children.
Similarly, in State of Rajasthan v. Om Prakash (2002) The Supreme Court highlighted that sexual assault on minors is a grave crime that requires severe punishment to serve as a deterrent.
One of the key provisions in the Bill is the requirement that evidence from child victims must be recorded within seven days. This is a significant improvement over the current law under the POCSO Act, which allows up to 30 days for the evidence to be recorded.
“By introducing harsher penalties, including the death penalty for particularly heinous acts, the Bill sends a strong message about the unacceptability of gender-based violence.
The purpose of this change is to ensure that the legal process moves quickly, which can help reduce the emotional and psychological burden on the child. The faster the evidence is collected, the sooner the child can start to heal without the stress of a prolonged legal process hanging over them.
In addition to speeding up the collection of evidence, the Bill also sets a strict deadline for the completion of trials. Under the current POCSO Act, special courts are encouraged to complete the trial within a year from the time they take up the case. The Aparajita Bill, however, requires that these trials be completed within just 30 days. This means that once the case goes to court, the entire process— from hearings to the final judgment— must be wrapped up within a month.
These changes are intended to prevent unnecessary delays which are common in the legal system. By speeding up both the collection of evidence and the trial process, the Bill aims to deliver justice more swiftly. This not only helps the victims and their families find closure sooner but also reinforces the message that the State is committed to taking serious and immediate action against sexual crimes.
Aggravated sexual assault typically refers to sexual violence that involves particularly heinous circumstances, such as assault by a person in a position of authority, assault resulting in severe harm, or repeated offences.
Under the POCSO Act, such offences already carry stricter penalties, but the Bill enhances these further. The Bill addresses the deep-rooted power dynamics that often underpin aggravated sexual assault, particularly when the perpetrator holds a position of authority over the victim (e.g., when they are a teacher, police officer or family member).
Also read: Pornography, populism and the rape culture
By imposing harsher penalties, the Bill challenges these power structures, signaling that abuses of authority will not be tolerated. The stricter penalties can contribute to a sense of empowerment among victims and potential victims, encouraging them to come forward and report crimes.
This shift is crucial in breaking the silence around sexual violence, which is often maintained by fear of retribution or disbelief.
Penetrative sexual assault involves non-consensual sexual penetration and is one of the most severe forms of sexual violence under the POCSO Act. The Aparajita Bill increases the minimum and maximum penalties for such offences, reflecting the gravity of the crime.
“One of the key provisions in the Bill is the requirement that evidence from child victims must be recorded within seven days.
Penetrative sexual assault is often intertwined with patriarchal norms that perpetuate gender-based violence. The Bill's focus on harsher punishment can be seen as part of a broader effort to dismantle these norms by holding perpetrators accountable and sending a clear message that such acts are unacceptable.
The Bill stipulates that fines imposed under its provisions must include compensation for the victim or their next of kin, as determined by a special court. This requirement goes beyond the POCSO Act's mandate, which focuses on covering the victim's medical expenses and rehabilitation.
By ensuring that victims receive compensation, the Bill incorporates an element of restorative justice, addressing not just the punishment of the offender but also the needs of the victim and their family.
The Bill's provision for mandatory fines that include compensation to the victim or their next of kin is also significant. This aspect can be analysed through the lens of the Supreme Court's ruling in Delhi Domestic Working Women's Forum versus Union of India (1995), where the court stressed the importance of compensating victims of sexual assault. The judgment highlighted that monetary compensation is essential to help victims rehabilitate and move forward with their lives.
“Penetrative sexual assault is often intertwined with patriarchal norms that perpetuate gender-based violence.
By mandating compensation, the Bill ensures that victims or their families receive the financial support needed for medical care, psychological counseling, and overall rehabilitation, reinforcing the Bill's commitment to holistic justice.
Click here to read the Bill: Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) 2024
