The recent gruesome crime that shocked the nation has catapulted West Bengal into the centre of a significant legal and political storm. The gangrape followed by the brutal murder of a female doctor at the government-owned RJ Kar Medical Hospital led to a widespread public outrage in the state. This further resulted in massive protests and violence that put an immense pressure on the state government to take swift action. In panic and haste, the West Bengal government made several amendments to the existing criminal laws, particularly the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Protection of Children from Sexual Offences (POCSO) Act. But, these very amendments have rattled Constitutional experts who are debating on the validity of these amendments, looking for answers as to whether a state government has any authority to change laws enacted by the Central government and if these changes are violating the principles enshrined in the Indian Constitution.
Criminal law in India falls under the Concurrent List (List III) of the Seventh Schedule of the Constitution. This means both the Central and state governments have the authority to legislate on matters related to law and order. However, as per Article 254(1) of the Constitution, in cases where there is a conflict between the Central and the state legislation on a subject in the Concurrent List, the law enacted by Parliament prevails. But, an exception can be made if the state law gets the Presidential assent, in which case it can override the Central legislation within that state.
The West Bengal government’s amendments to the BNS, BNSS, and POCSO laws are currently pending the Presidential assent. And hence, these amendments, enacted under intense public pressure, have raised important legal questions: Are these amendments in harmony with existing Central laws, or do they create a conflict that would render them void under the doctrine of repugnancy? Do these amendments truly address the issues of law and order in the state, or are they merely an attempt by the state government to deflect responsibility?
The doctrine of repugnancy
The doctrine of repugnancy, embedded in Article 254 of the Constitution, is designed to resolve conflicts between the state and the Central laws on subjects listed in the Concurrent List. According to this doctrine, if a state law conflicts with a Central law, the Central law prevails, and the state law becomes void to the extent of the inconsistency. This doctrine ensures uniformity in the legal framework across the country, preventing states from enacting laws that contradict Central legislation.
In the case of West Bengal’s recent amendments, it is essential to scrutinise whether the state has overstepped its legislative boundaries. The BNS, for instance, already contains provisions for severe punishments, including the death penalty. However, these punishments are subject to judicial discretion, and the quantum of punishment is determined based on the specifics of each case. The state’s amendments may be attempting to impose stricter penalties or expand the scope of offenses punishable by death, but such amendments could conflict with existing Central laws if they blanket over areas already legislated by the Union.
Moreover, the principle of repugnancy would be tested in court to determine if West Bengal’s amendments infringe on Central legislation. The courts would have to interpret Articles 254(1) and 251 carefully, balancing the state’s right to legislate on matters of law and order with the need to maintain consistency with national laws. For the same, the Supreme Court in Rajiv Sarin v. State of Uttarakhand 2011 (8) SCC 708 laid down a two-pronged test for repugnancy under Article 254 of the Constitution. The judgment read,
“45. For repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled: firstly, there has to be a “repugnancy” between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject”.
It is notable to mention that on the similar lines of repugnancy, the Supreme Court in its landmark judgment in Forum for People’s Collective Efforts v. State of West Bengal (2021) 8 SCC 599 struck down the West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA), declaring it unconstitutional. The court held that the state law was repugnant to the Central Real Estate (Regulation and Development) Act, 2016 (RERA), as it covered the same subject matter and significantly overlapped with the provisions of RERA. The court then directed the state of West Bengal to implement RERA in its true spirit and refrain from enacting a parallel legislation that duplicates or contradicts Central laws.
The question of Capital punishment
Another critical issue raised by West Bengal’s amendments is the provision of the death penalty. Capital punishment has long been a contentious topic in India, with debates centering around its constitutionality and effectiveness as a deterrent.
While the Indian Penal Code and other Central laws allow for the death penalty in the “rarest of rare” cases, the application of this punishment must adhere to Constitutional safeguards and judicial guidelines. This was further substantiated when the Supreme Court’s landmark judgment in Mithu v. State of Punjab (1983) 2 SCC 27 7 declared Section 303 of the erstwhile Indian Penal Code, 1860 unconstitutional and invalidated mandatory death penalties in India. It established that the judiciary must consider aggravating and mitigating circumstances when deciding sentences in capital cases.
The Supreme Court had observed, “…if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws. But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable”.
It thus further observed, “…we are of the opinion that Section 303 of Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life-convicts on the prison staff, but the Legislature chose language which far exceeded its intention. The section also assumes that life- convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data…”.
The state’s amendments may attempt to broaden the scope of capital punishment or make it mandatory in certain cases, which could be seen as contravening the spirit of the Constitution. The Supreme Court has repeatedly emphasised the importance of judicial discretion in awarding the death penalty, considering factors such as the nature of the crime, the circumstances of the offender, and the possibility of reform. If West Bengal’s amendments undermine this judicial discretion or impose harsher penalties than those allowed by Central laws, they could be challenged as unconstitutional.
Legislative silence and state powers
One argument in favour of the state’s amendments could be that they address areas where Central laws are silent. For example, states like Maharashtra, with the Maharashtra Control of Organised Crime Act (MCOCA), and Uttar Pradesh, with the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, have enacted laws that target specific types of crimes not adequately covered by a Central legislation. These laws have been upheld because they fill gaps in the existing legal framework without conflicting with Central laws.
If West Bengal’s amendments similarly address areas where Central laws are silent, they could be seen as a legitimate exercise of the state’s legislative powers. However, the scope of such amendments must be carefully scrutinised to ensure they do not encroach on areas already covered by Central laws, especially in light of the pending Presidential assent.
The State’s responsibility
The larger question that arises from this situation is whether the West Bengal government’s amendments are a genuine attempt to improve law and order or merely a political move to appease public and silence their anger. The state’s inability to maintain effective law and order during the crisis led to the enactment of these laws, but whether they will have the desired impact remains to be seen. Passing stricter laws without addressing the root causes of crime, such as police inefficiency, corruption, and social issues, may not lead to any real change.
Furthermore, the state government’s actions could be interpreted as an attempt to deflect responsibility for its failure to protect citizens and maintain order during the protests. By enacting harsher laws, the government may be trying to appear tough on crime without addressing the underlying issues that caused the incident in the first place.
Conclusion
The recent legislative amendments in West Bengal, spurred by public outrage and political pressure, raise significant questions about the balance of power between state and Central governments in India. While states have the authority to legislate on matters of law and order, their laws must align with the Constitution and Central legislation. The doctrine of repugnancy will play a crucial role in determining the validity of these amendments, and the courts will ultimately decide whether they pass Constitutional muster.
At the heart of this debate is the need for effective law enforcement and justice in West Bengal. While stricter laws may provide a temporary solution, they cannot replace the need for comprehensive reforms in the state’s law and order machinery. The tragic incident that led to these amendments should serve as a reminder that true justice requires more than just legislative changes — it demands accountability, transparency, and a commitment to protecting the rights and dignity of all citizens.
To put it in line, the Bill suggesting stricter punishment, speedy process sounds ideal if we leave jurisprudential wisdom and Constitutional practicality for a minute. However, seeing the desperateness for the laws at a time when the new criminal laws have already been laid down gives rise to the question if the need for the Bill is a mere maintenance for the dents and pot holes on the road. This, then, raises questions on the bona fide or the intent of the West Bengal Government behind the amendment Bill especially when the whole country is castigating it for inaction.
Whether this was the much-required action, or was it something that the State took a leap from, is yet to be scrutinised.
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