The new proposal brought by West Bengal Chief Minister Mamata Banerjee, who is facing questions regarding women's safety, is under question. Not only politicians but legal experts are also raising questions because Mamata government has passed an amendment law on Tuesday and has made provision for death penalty for the crime of rape, whereas the new criminal law Indian Judicial Code, which came into force in the whole country from July 1, already has the death penalty for the heinous crime of rape.

focus on strict enforcement of the law

Legal experts say that instead of amending the law, the West Bengal government should focus on strictly enforcing the existing law as it would be very wrong to award death penalty for the common crime of rape and this punishment already exists for the heinous crime of rape.

what does the law say

Section 66 of the BNS says that if the victim dies after the rape or goes into a dying state i.e. coma, then the culprit will be punished with a minimum of 20 years of imprisonment which can be extended to life imprisonment. Life imprisonment means imprisonment till the end of life. Or it will be a death sentence.

There is already a provision for death penalty

Raising clear questions on the intentions of the Mamata government, senior Supreme Court lawyer Mahalakshmi Pawani says that the Chief Minister of West Bengal has failed to provide security to women and to conduct fair investigation and action in the crime and now by bringing the amended law, she is trying to mislead the public because the Indian Judicial Code (BNC) already has the death penalty for the heinous crime of rape.

• Mamata Banerjee herself is the Chief Minister, she holds the Home portfolio, so from whom is she seeking justice? This is a political stunt, she is misleading the public, the public is not that stupid. However, legally the state government has the right to bring amendments in the law.
• Former law secretary PK Malhotra explains the legal and constitutional right of the state government to bring amendments in central laws (Indian Justice Code, Indian Civil Defence Code and POCSO Act).
• Malhotra says that both the Centre and the State have the right to make laws on subjects which are in the Concurrent List of the Constitution, the only condition is that the State law should not be against the Central law.
• Criminal law comes under the concurrent list, so the state government has the right to bring an amendment act. The state government will pass the amendment law from the assembly.
• After that the bill will be sent to the President for approval through the Governor and if the President approves the bill then it will become a law and the amended law will be implemented in that state.
• But if the President does not give his assent, it will not become a law. This is a constitutional and legal system. There have been cases in the past where central laws have been amended by state governments.
• But at the same time Malhotra says that this is also a question that behind what Mamata Banerjee is doing, her intention is to make the law stricter or is it just for political purpose.

Controversy over death penalty

On the issue of death penalty for rape, retired Allahabad High Court judge SR Singh says that death penalty cannot be given for the crime of ordinary rape. If this happens, it will be very wrong and such a law will not stand in court.

The court will reject it. The court has and should have discretion on the issue of punishment for any crime. If the law fixes a minimum punishment for any crime, the court cannot give a punishment less than that.

However, the heinous crime of rape still has the death penalty. Retired judge of Delhi High Court SN Dhingra also agrees with Justice SR Singh that there cannot be a death penalty for simple rape. This would be impractical because the definition of rape in the law is very broad.

what kind of punishment is there in case of rape

He says that if an 18 year old boy and a 17 year old girl elope and get married, then that 18 year old boy is a rapist. In such a case, if such a punishment is given in a rape case, then what discretion will the court have? Because if it is a case that it was technically rape, then it was not rape.

Quick investigation, quick trial

He says that such political amendments are of no use. In fact, the focus should be on compliance with the law. The focus should be on how the time limit set in the new law for quick investigation and quick trial can be strictly followed and what will be the consequences if it is not followed.

The result should also be decided, it will not be enough just by saying that there will be no date after date, it should be seen how this can be ensured. However, Justice Dhingra also believes that the state government has the right to bring amendment in the law.

What does life imprisonment mean?

If we look at the law, Section 66 of BNS says that if the victim dies after rape or reaches a dying state i.e. coma, then the culprit will be punished with a minimum of 20 years of imprisonment which can be extended to life imprisonment. Life imprisonment means imprisonment till the end of life. Or it will be a death sentence.

Punishment for helping rapists too

The bill talks about life imprisonment for the accused of rape and gang rape and not giving him the facility of parole. There is also a provision of financial penalty on the family of the accused. There is also a provision of three to five years of rigorous imprisonment for those who provide shelter or help to the rapists.