Bengal’s Aparajita bill: Is 21 days to finish probe an unrealistic target to chase?

A trainee doctor was raped and murdered on August 9 at West Bengal’s RG Kar Medical College and Hospital, triggering huge protests in Kolkata and other places. On August 12, Chief Minister Mamata Banerjee gave seven days to the police to crack the case.

Less than a month later, the Mamata Banerjee government got a bill passed in the West Bengal Assembly seeking to amend the Bharatiya Nyay Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita and parts of the Protection of Child from Sexual Offences (Pocso) Act of 2012.

The BNS Section 64 makes rape punishable with prison terms from 10 years to life. The Section 66 provides for death penalty or 20-year-lifer for rape and murder or rape which leaves survivor in vegetative state.

What sets apart the Bengal Bill is the provision to the investigation and prosecution process, which requires rape case investigations to be completed within 21 days of the report of the crime. A possible extension of up to 15 days can be granted on a case by case basis.

The question is, is a maximum 36-day deadline a realistic target?

A look at some key numbers

Outrage over rape cases, in particular involving gang rape and murder, is not new in India — the Mathrua case of the 1970s, the Bhanwari Devi case of the 1990s or the Nirbhaya case of 2010s, all triggered protests. An overhaul of the legal framework was done after the Nirbhaya gang rape and murder case of 2012. Expeditious probe and trial were mandated.

Around the time when Nirbhaya, a paramedic student, was brutalised in a moving bus in Delhi, the Indian police were recording up to 25,000 rape cases a year, according to data from the National Crime Records Bureau (NCRB).

The subsequent protests led to sensitisation of both the police and the public, resulting in more registration of such cases. The annual NCRB numbers have largely remained above 30,000 since then with the exception of the Covid-19 pandemic year of 2020 — peaking at about 39,000 in 2016.

On an average, one rape case is registered every 15 minutes in India. The NCRB figures show more than 31,000 recorded rape rapes in 2022 — the latest year for which the compiled data is available.

The spike in rape cases is despite the fact that India has ramped up the penalties, the minimum sentence can extend to life imprisonment, or can result into death penalty if the victim is below 12.

The problem is despite a higher registration of rape cases, the conviction rates have been around 27-28 per cent in the last five years (2018-2022), according to NCRB data.

This is a clear case of lax probe and poor prosecution because also of low-quality evidence collection and witness follow-ups. If judges doubt the police work in almost 75 per cent of the rape cases, it is a definite judicial comment on how police probe such cases.

And there are other challenges

The Constitution of India guarantees the protection of law to every individual, and thus the legal framework of country gives a rape accused the right to be defended in a court of law. The process of trial has to pass through several stages before the culprit, if given capital punishment, could actually be hanged.

Even in the case of Nirbhaya, the case took seven years and three months for the culprits to be hanged. Bengal CM Mamata Banerjee has been vocal about the fast-track hanging of a rapist-murderer.

Let’s look at what Indian laws provide for hanging of a convict —

• Trial and punishment: According to Project 39 of the National Law University, all trials pertaining to capital cases falling under ordinary criminal law are conducted in the Court of Session. If the Court of Session awards the death sentence, the case is mandatorily referred to the concerned high court (state specific) for confirmation of the death sentence.

• Appeal and confirmation: The government, the victim’s side or the accused may appeal in the high court against the sessions court ruling. The high court of a minimum of two judges may confirm the death sentence awarded by the Court of Session, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Session might have convicted her, order a new trial on the same or amended charge or acquit the accused person.

• Appeal in the top court: Article 134 of the Constitution of India gives any affected party the right to appeal in the Supreme Court against a high court order. The top court may or may not uphold the judgments pronounced by the sessions court or the high court in question. The Supreme Court order may then be appealed against in the same court through a review petition and also through a curative petition.

• The right to appeal for pardon: Once the death sentence is confirmed in an appellate court, the convict still has the right to file a mercy petition with a state governor or the President of India. The governor or the President, as the case may be, may reject or approve the mercy petition depending on the advice of the state or the central government. There is no limit as to the number of requests for pardon that can be filed by or on behalf of a prisoner, provided a new and substantial ground is presented in each request for pardon.

• The right to challenge the rejection of pardon: If any party is not satisfied with the decision of the Executive (governor or the President), they have the right to challenge the decision in the Supreme Court, which may review the documents to adjudicate the merits of the government’s decision.

Even courts are overburdened

Indian courts are notoriously slow in adjudicating matters. If the rate of adjudication remains the same, the existing case may take up to 300 years to be finally adjudicated. There are multiple reasons for this long adjudication time.

India has one of the lowest judge-population ratios in the world at 21 judges for a million people, compared to 150 in the US. Various governments have spoken about increasing this ratio to 50 judges per million people, but the movement in that direction has been extremely slow.

According to the “Court on Trial” data-driven document by law experts Aparna Chandra, Sital Kalantry and William HJ Hubbard, cases in India have taken around 13 years and six months to get disposed — from the initiation in trial courts to the final adjudication in the Supreme Court. And, interestingly, the Supreme Court takes only about one-third of the total trial time. This means that the lower courts where a police probe is examined takes the maximum time.

This brings us back to Bengal CM Mamata Banerjee’s push for a 21-plus-15-day probe and a time-bound trial of rape cases. The goal may be politically significant and emotionally satisfying for both the leaders and the public but the target set by the new law may be an uphill task for the police in getting justice served.