Around 28 organisations, six legal professionals, professors, social activists have written to the Chief Minister, Home Minister, Minister for Law and Judiciary and Minister for Women and Child Development, Maharashtra, raising objections to the Maharashtra Shakti Bill, 2020 and the Special Courts and Machinery for the Implementation of the Shakti Bill, 2020.

The proposed bill will be introduced in the 2-day winter session of Maharashtra Assembly beginning December 14. This draft Bill includes provisions for stern punishment – including a death penalty, life sentence, and hefty fines, for the perpetrators. It also recommends speedy trials and seeks to amend relevant sections of the Indian Penal Code, Criminal Procedure Code and the Protection of Children from Sexual Offences Act for the proposed law’s application in the state.

They have expressed their “shock” at the draconian legislation, in the name of curbing the widespread violence against women and girls. This memorandum states that some of the 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. Hence, the group has requested the ministers through this letter to not table the Bill till there is a larger consultation with activists, lawyers and academicians who are working on these issues.

They have also critiqued the Bill and have asked for extra time to send across a detailed version of it. The feminists have however, addressed some issues in the letter like the term consent, debate around death penalty, the judicial process, false cases and already existing laws.

Presumption of consent

The letter states, “The Amendment which seeks to add Explanation 3 to section 375 i.e. where parties are adults and the conduct of such parties from all circumstances surrounding the same appears that there was consent or implied consent a presumption of consent will be made and that negates the entire definition of consent under section 375 and the offence of rape itself.”

This feeds into the patriarchal notions of consent as in a lot of cases of rape, the accused take the plea of consent and with such an explanation added, it will become impossible for the prosecution to establish rape. This will nullify the very offence of rape.

Death Penalty

They believe that the proposed enhancement in the punishment for rape, gang rape and penetrated sexual assault against children to include death penalty will be counter-productive to women and contrary to the statement and object of the law. It is the certainty of investigation, trial and punishment that works as a deterrent and not how harsh the punishment is.

They have relied on studies that show “more than half of the total offences under the POCSO Act are committed by persons known to the children. In such cases, 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 also states that its dangerous for all sexual violence survivors as several incidents of rapes are followed by the rapists killing the victim because they feel there is no difference between the sentence for rape and that for murder. Imposing death penalty will also make survivors feel that their life is over and would not be valued anymore.

False cases

Section 12 of the Special Courts and Machinery for the Implementation of Shakti Act, 2020 punishes filing “false complaints” or providing “false information” regarding sexual and other offences against women solely with the intention to humiliate, extort, threaten or defame the accused. The group of feminists believe that this provision will further perpetuate the patriarchal notions of viewing women with suspicion, as unworthy of being believed and likely to incriminate men in false cases for unscrupulous purposes.

Time frame for investigation and trial

Currently, the recently amended Section 309 of the CrPC sets the time limit to dispose of a rape case within 60 days (two months) from the filing of the chargesheet. Similarly, Section 35 of the POCSO Act provides that cases under the Act must be disposed of within one year from taking cognisance.

But the Bill provides 15 days for investigation and 1 month for trial which they believe will lead to botched up and inefficient investigation and trial. The said time frame will not be sufficient for gathering all evidence and will only become an excuse for the police to not conduct a proper investigation. Further, a hurried investigation and trial, would more often than not lead to miscarriage of justice.

Neither the Police nor the Courts have an infrastructure to comply with these time frames and the same will only result in unfair trials and more acquittals. So, the group of learned lawyers, activists, professors feel that it is imperative to fulfil the obligations under the existing laws instead of rolling out new laws.

Laws in force

They have pointed out that the proposed insertion of Section 354E (Harassment of Women by any mode of communication) to the Indian Penal Code is targeted at punishing the intimidation of women through electronic media and platforms. But the same is already punished under Sections 354A to 354D of the IPC and Sections 66E, 67 and 67A of the Information Technology Act, 2000 (IT Act).

“Similarly, the proposed insertions of Sections 166A (d), Section 166C to the IPC are aimed at punishing public servants for failure to assisting in the investigation or performing their assigned duties. Whereas, Sections 166, 166A, 166B and 167 of the IPC sufficiently punish such acts of public servants conducted in contravention to the law or disobedience of their orders and duties”, the letter states.

They have appealed to the Ministers to not go ahead with the Bill without engaging in larger discussions with the concerned stakeholders.

The entire Memorandum to the Maharashtra Government may be read here:

Related:

Maharashtra: Speedy trials, stricter penalty for heinous crimes against women in Shakti Act

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