SENSITIVE to crimes against women, the Uddhav Thackeray government tabled the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020, on December 14, the first day of the curtailed two-day winter session of the Assembly. But the proposed Bills invited loud protests from women’s rights activists and opposition political parties. Describing the draft Bills as regressive, superficial and deeply flawed, rights activists said the Shakti Bill should be passed only after consultation with experts.
Taking cognisance of the demand for a detailed discussion on the draft Bill proposing crucial changes to the existing laws on violence against women and children, the government deferred approval for the Bill. It referred it to a 21-member joint select committee of both Houses of the legislature. Government sources said more than half of the committee would consist of women members. The committee has time until March 1, 2021, to submit its recommendations.
Veena Gowda, a senior women’s rights lawyer, welcomed the government’s decision and hoped a more holistic law would be created.
The twin Bills propose to reduce crimes against women and children by imposing stringent punishment. Women’s rights lawyers and activists in Mumbai told Frontline that severe punishments such as death and life imprisonment were certainly not deterrents. A strongly worded letter signed by 30 women’s organisations, which was given to the Chief Minister on December 11, reads: “Some provisions are not only anti-women but negate the very offence of rape. The effect of this Bill will completely deny women any hope of justice.” This was one of the documents the Chief Minister acknowledged when he deferred the Shakti Bill.
Quantum of punishment
The Bill seeks to increase the quantum of punishment for all crimes against women which include harassment on social media. The contentious provision, however, is the death sentence for rape, acid attacks, and sexual offences against children. The Bill suggests adding a third explanation in Section 375 of the Indian Penal Code (IPC) regarding “presumption of consent”. It means in case two adults are involved, the accused can appeal for “consent or implied consent”. For crimes termed “heinous” the punishment will be imprisonment for not less than 10 years, even up to life imprisonment. Additionally, the Bill aims to set up select police teams and 36 special courts in the State, with a special prosecutor. There will be an online women and children offenders’ registry with convicts’ details and a link to the national registry of sex offenders. Those convicted of acid attacks would have to pay Rs.10 lakh to the victim for surgery. Threats and intimidation of women on social media will be considered an offence entailing a maximum punishment of two years and a fine of Rs.1 lakh. Another provision is to punish those filing false rape cases to extort, threaten or defame the accused.
The draft Bill seeks to make these amendments within vital sections of the IPC, the Code of Criminal Procedure (CrPC) and the Protection of Children from Sexual Offences (POSCO) Act. While the stricter punishment is suggested under the IPC, the proposed amendments to the CrPC seek to bring down the investigation period from two months to 15 days, the trial period from two months to 30 days, and the appeal period from the six months to 45 days.
Across the board, rights activists say the death penalty for rape will be detrimental to the victim. On the amendment on “presumption of consent”, women’s rights activists said the provision “feeds into the patriarchal construction of consent and conduct of women”.
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The letter to the Chief Minister stated: “It is the certainty of investigation, trial and punishment that works as a deterrent rather than the severity of punishment…. The possibility of the accused person being awarded the death sentence multiplies the conflict and the trauma faced by the victims and is most likely to prevent the reporting of such crimes.” The letter is also emphatic about the danger of the victim being killed after the rape in order to wipe out evidence.
Flavia Agnes, a senior lawyer who runs the women’s rights organisation Majlis, said: “Quite simply most times the victim is raped by a relative or a known person. First, not many women will file a complaint knowing a family member could be executed. Second, the victim is in danger because the rapist will kill her/him so that there is no witness or evidence.” Flavia Agnes, who has been in the forefront of creating a rehabilitation programme along with the state for rape victims, said it would have been wiser to improve the infrastructure in the courts for cases that deal with crimes against women.
As for punishing people reporting false cases, the activists said in their letter that the provision “perpetuates the patriarchal notions of viewing women with suspicion, as unworthy of being believed and likely to incriminate men in false cases for unscrupulous purposes”. Another absurdity is that the time frame suggested by the Bill is 15 days for investigation and the trial a month later. “A hurried investigation and trial would more often than not lead to miscarriage of justice,” the letter stated.
Also read: Interview with lawyer-activist Flavia Agnes
Several criminal laws had provisions for punishments for many of the crimes covered by the Shakti Bill, the lawyers said. For instance, the proposed inclusion of Section 354E (harassment of women by any mode of communication) in the IPC is targeted at punishing those intimidating women through the electronic media and social media platforms. This crime is already punishable under Sections 354A to 354D of the IPC and Sections 66E, 67 and 67A of the Information Technology Act, 2000. Similarly, the POSCO Act delivers death to serious offenders. Following the Nirbhaya rape case, the law was amended to include capital punishment for a repeat offender or in a case that resulted in the victim going into a coma.
Veena Gowda said: “This is a short cut. Lawmakers are missing the point. It is not severity of punishment that will act as a deterrent. There must be consistency and certainty. If I know there will be a thorough investigation and I know it works, that is a deterrent. Focus on making that system work, rather than adding layers.... There is so much they can do. For example, better forensic labs, counselling and sympathetic medical examinations could be a beginning. Strengthen, improve the attitude of the courts on this issue and sensitise the existing framework of the laws pertaining to crimes against women.”
Witness protection and sensitisation
Susan Abraham, a Mumbai-based human rights lawyer, said: “This is a dead letter law. If you talk about justice for women, you need to have protection for women. Start proper witness protection programmes and complete protection during trials. You have to get to the root of the problem. We are not looking at the actual problem of dealing with violence against women. Furthermore, first tutor society on protecting women, then make laws.”
Susan Abraham, who has experience with the State government on rights cases, said: “The Bill will have no meaning at the ground level. It is a knee-jerk populist measure. If it is to get votes, then it is not the right thing to do.” She pointed out that new laws would not be required if the current infrastructure was improved. For instance, safeguards such as women’s cells in police stations have wound up and “protection officers”, as stipulated by the Domestic Violence Act, are non-existent.
In spite of the constant political wrangling that has stalled development in the State, there is a consensus among all parties on protection for women against crime. A government source said the Shiv Sena was fulfilling a promise made in the run-up to the Assembly election in 2019. Rights activists question the hurry in introducing the Bill, as they feel a poorly thought-out Bill could result in irreparable damage.
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As per the National Crime Records Bureau data, Maharashtra topped the country in the “heinous category—gang rape with murder” with 47 cases in 2019, and is one of the top five States in crimes against women. This could be the reason for the hurry in tabling the Bill. Lawyers believe that the Hathras rape incident in Uttar Pradesh must have got Maharashtra worried as it has a reputation for atrocities against Dalit women.
In 2011, the State government, along with a team of lawyers under the banner of Rahat , started a compensation and hand-holding programme for victims of rape. Once the crime was registered, the government paid Rs.2 lakh to help the survivor cope with difficulties. The programme has run into a bureaucratic mess. Flavia Agnes said the victim now had to appear before a legal aid committee without a support person. If the case did not go in her favour, the victim would have to return the money. “Further their attitude is callous and dismissive. This needs to be addressed,” she said.
The Shakti Act is modelled on Andhra Pradesh’s Disha Act.