An Analysis: The Shakti Bill by Maharashtra Government

AUTHOR PROFILE: The author Ria Menon is a second-year B.A. LL.B. student from the Shri Navalmal Firodia Law College, Pune

INTRODUCTION

The Home Minister of Maharashtra, Mr Anil Deshmukh of the Maha Vikas Aghadi (MVA) government recently tabled two interconnected bills which form the proposed Shakti Act in the two-day winter session of the Maharashtra State Government Legislative Assembly in Mumbai. The two bills namely “The Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020” and “The Special Court & Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020,” propose several amendments to laws regarding sexual offences against children and women and are designed to help reduce such heinous crimes with “swifter” trials and “severe punishment.”

According to the Home Department, the bill proposes strict punishments for those crimes which were not specifically covered under other laws on crimes against children and women; for example: threatening and defaming women on social media; false complaints about rapes and acid attacks; non-cooperation on social media platforms and with public representatives while ongoing investigations; and protection of the identity of the victims in cases of molestation and acid attacks.

The main reason for the government to consider the bills was the appalling surge in violent crimes, and sexual crimes to be more specific, against both: children and women. The statement of objects and reasons of the proposed legislation reads: “In order to effectively control heinous sexual offences against women and children, it is necessary to complete the investigation and the trial of these cases within a time frame, which may deter the perpetrators from committing such offences. Stringent punishment, including heavy fines and death penalty, needs to be prescribed.”

The bills are said to be drafted on the lines of the “Disha Act” passed unanimously by the Andhra Pradesh Government in 2019.

OVERVIEW OF THE DISHA ACT

Key pointers from the Act are as follows:

• Introduction of the “Women and Children Offenders Registry” in an electronic form; to be made publicly available to everyone including law enforcement agencies.
• Exclusive punishment of death penalty to offenders for rape crimes: a fixed jail term leading to life imprisonment or a death sentence.

This provision was given by amending Section 376 of the Indian Penal Code, 1860.

• Reduction of judgement period to 21 days. Investigation to be completed in 7 working days and trial in 14 working days.

This was made possible by amending Sections 173 and 309 of the Code of Criminal Procedure Act, 1973 (Cr. P. C.).

• Stringent punishment like life imprisonment to sexual offenders against children.
• Punishment of imprisonment for harassment of women through email and social media, digital or any other platform.
• Establishment of exclusive special courts in every district of Andhra Pradesh to ensure speedy trials. These courts will exclusively deal with cases of offences against children and women.
• Reduction of the period for disposal of appeal to 3 months by amending Sections 374 and 377 of Code of Criminal Procedure Act, 1973 (Cr. P. C.).
• Constitution of special police teams called the “District Special Police Teams,” headed by DSP for investigation and appointment of special public prosecutors in special courts.

HIGHLIGHTS FROM THE SHAKTI ACT

• The draft legislation seeks amendments to the Indian Penal Code (IPC), Code of Criminal Procedure Act, 1973 (Cr. P. C.), and the Protection of Children from Sexual Offences Act, 2012 (POCSO).
• Most prominently, the Bills propose to introduce the death penalty as a punishment for acid attacks, rape and other sexual offences against minors and in cases where acid attack victims have been grievously injured.

In other words, the death penalty is proposed “in cases which are heinous and where adequate conclusive evidence is available and circumstances warrant exemplary punishment.”

• The Bills also seek a general quantum of punishment from criminals committing crimes against children and women and opt for a heavy fine of as much as Rs. 10,00,000 on those who are found guilty.
• In acid attack cases, a penalty levied on the accused will be made available to the survivor for medical and surgical expenses.
• The draft Bills propose to add a new section to the Cr.P.C. to deal with harassment and offensive communication, that creates distress, alarm or is lascivious or lewd in nature for women, through any modes of communication, such as through telephone, email, social media platforms or through any other electronic or digital mode.

The offences are inclusive of the real or fabricated depiction of any part of the body of any woman meant to defame her, outrage her modesty, cause identity theft or violate her privacy; and compel any woman to respond to romantic overtures by threatening her.

• The proposed law stipulates ambitious and strict timelines for the completion of investigations (15 working days, extendable only by 7 days) after the FIR has been filed, trials (30 working days) after the charge-sheet is filed, the period within which one can appeal against a court order (15 working days), and the disposal of the appeal (within 45 days).
• The Bills talk about setting up 36 special courts to hear cases strictly pertaining to crimes against children and women. They also call for special investigation teams, including one woman officer at the very least.
• The Bills suggest adding a third explanation in section 375 of the IPC, which deals with charges or rape. The explanation says that in a case where two adults are involved, the accused can appeal for ‘consent or implied consent.’
• The Bills also suggest making a different registry for sexual offenders, called the “Women and Children Offenders Registry,” which will be linked to the National Registry of Sexual Offenders with details of the convicts.
• Interestingly, the Bill also provides for punishment to those who file false rape cases for extortion, defamation or for the purpose of threatening the accused.
• Lastly, the Bill states that the government will set up “One-stop Centres” for providing victims with facilities like rehabilitation, legal aid, counselling and medical support.

CRITICISM

A letter signed by 92 signatories including activists, lawyers, women’s organisations and academicians asked for the withdrawal of the Bills. In their words, the proposed Shakti Act is a “draconian legislation.” They have expressed their serious concerns about the Bills, holding them a step backwards in the direction of women’s rights and gender equality, amongst other things. They noted that the Bills have been framed with a vivid patriarchal frame of view. According to them, some provisions are not only anti-women but also negate the very offence of rape; and that the Bills will adversely affect the hope of women for justice.

The Bills have allegedly presumed that valid consent exists if the two parties are adults, and their conduct and the circumstances are indicative that there was either consent or implied consent. It is important to note that the death penalty in such cases might be counter-productive because the death penalty reduces reporting and conviction rates, and might pose be life-threatening and traumatizing to the survivors, especially children. It is well proven by research that not the stringency of the law but the certainty of being punished acts as an effective deterrent, and that stringent punishment is likely to give the accused the benefit of the doubt, especially in cases of the death penalty.

The authorities should either put more focus on proper implementation of existing laws than on enactment of new laws or come up with progressive legislation which does not ignore the values of gender equality and children and women rights. Since the Opposition and activists demanded time to consider the two tabled-Bills, the government decided to send them for review to a 21- member committee comprising MLCs and MLAs. The Bills are now up for discussion in the Maharashtra State Legislative Assembly.

REFERENCES

1. Disha Bill: What are the highlights of Andhra Pradesh’s new law? – Explained News, The Indian Express
2. Maharashtra tables two Bills on Shakti Act in assembly despite outcry – Times of India
3. Nine Things To Know About Maharashtra Government’s Shakti Bill – shethepeople, The Women’s Channel
4. Activists, lawyers say Shakti Bill ‘draconian’, ask CM not to table it – The Indian Express
5. The Maharashtra Shakti Bill on crime against women, children & why it’s called ‘draconian’ – The Print
6. Maharashtra Winter session: Discussion on Shakti Bill today, Opp says not enough time – The Indian Express
7. Crimes against women and children: State clears Bill proposing death penalty for rape – The Hindu

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