New Delhi: The Maharashtra government has been positioning its ‘Shakti bill’ as a potential landmark legislation to curb sexual offences against women and children.
The bill was being pushed by the Uddhav Thackeray-led government in the two-day winter session of the state legislature that concluded Tuesday. However, after demands of more time from the Opposition and outcry from activists, the government decided to send it for review to a 21-member committee comprising MLCs and MLAs.
The contentious bill proposes stricter punishments, including the death penalty and increased prison sentences, for crimes such as rape, acid attack and sexual offences against children. It was tabled by State Home Minister Anil Deshmukh in the legislative assembly Monday.
The draft bill also prescribes prison sentences for defaming or threatening women on social media.
However, several women’s rights activists, lawyers and academicians have expressed serious concerns that the bill may turn out to be a step back for women’s rights. They noted that the bill has been framed within a patriarchal worldview, especially the way consent is defined in it.
ThePrint looks at the provisions of the Shakti bill and the criticism levelled against it.
What is the Shakti bill?
The proposed ‘Shakti law’ involves two bills — the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020.
The draft legislation seeks amendments to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC)and the Protection of Children from Sexual Offences (POCSO) Act to include new offences, increase punishments and speedier investigations and trials.
According to the home department, the bill proposes punishments for crimes that were not specifically covered under the laws for crimes against women and children earlier.
These include threatening women and defaming them on social media, making false complaints about rape and acid attacks, non-cooperation of social media platforms and public representatives in such investigations and bringing in restrictions to protect the identity of victims in molestation cases and acid attacks, just like in rape cases.
Most prominently, the Shakti bill proposes introducing the death penalty as punishment for rape, acid attacks and sexual offences against children. It also seeks a general increase in the quantum of punishment for crimes against women and children.
In acid attack cases, the penalty levied on the accused will be made available to the survivor for medical expenses as well as getting plastic surgery.
Provisions against derogatory content against women on social media
The Shakti bill proposes to add a new section to the CrPC to deal with harassment of women through any mode of communication.
According to this amendment, any “offensive communication” through telephone, email, social media platforms or through any other electronic or digital mode that “creates distress, alarm or is lascivious or lewd in nature” will be punishable under the Act.
Other offences such as threats through any form of media, a depiction — whether real or fabricated — of any part of the woman’s body using social media or electronic media to defame women and using any form of media to cause an identity theft whether it is to outrage her modesty or violate privacy, will also lead to steep punishments, under the proposed amendment.
It seeks a maximum prison sentence of five years and a penalty of Rs 5 lakh for these offences.
Compelling any woman to respond to romantic overtures by threatening her will also draw imprisonment of up to three years with a fine of Rs 1 lakh on first conviction, and an imprisonment of up to five years with a fine of Rs 5 lakh in subsequent instances, according to the draft bill.
Investigation and trial under proposed Shakti Act
The Maharashtra government’s proposed law stipulates ambitious and strict timelines for the completion of investigation and trial in sexual offence cases.
In the bill, the time period for investigation into any crime against women and children has been reduced to 15 working days from the earlier two months.
The trial will also take place within 30 days instead of two months. Moreover, the period within which one can appeal against a court order will be brought down to just 15 days from the current six months under the proposed law.
The bill talks about setting up 36 special courts to hear only cases pertaining to crimes against women and children. It also calls for special investigation teams, involving at least one woman officer.
Modelled on Andhra Pradesh’ Disha Act
The Maharashtra government has modelled its Shakti bill on the Disha Act passed by the Andhra Pradesh government last year. The Act was passed after the brutal gang rape and murder of a veterinarian in Hyderabad in 2019.
Home Minister Deshmukh along with then Additional Chief Secretary (Home) Sanjay Kumar and Director General of Police Subodh Jaiswal, among others, had visited Andhra Pradesh in February this year for a meeting with Chief Minister Y.S. Jagan Mohan Reddy on the Disha Act.
On their return, Maharashtra’s home department formed a five-member committee under Aswathi Dorje, director of the Maharashtra Police Academy, to bring a similar legislation in the state. Dorje was part of the delegation that visited Andhra Pradesh with Deshmukh.
The committee prepared two draft bills in March and presented them to the state cabinet, which then appointed a cabinet sub-committee under Public Works Development Minister Ashok Chavan to study the recommendations in detail. The sub-committee was also tasked with finalising the draft bills and presenting them to the cabinet for approval. The Chavan-led six-member panel included two women ministers — Congress’ Yashomati Thakur and Varsha Gaikwad.
The state cabinet approved the draft last week after which it was tabled in the state legislative assembly.
Opposition to the bill
While the state government believes this legislation will be landmark and is positioning it as such, not everyone agrees with them.
Over 90 activists, lawyers, academicians and non-government organisations working for women and child welfare wrote an open letter to Chief Minister Uddhav Thackeray, Home Minister Anil Deshmukh and Woman and Child Development Minister Yashomati Thakur criticising the proposed Shakti law as “draconian”.
The letter, dated 11 December, reads, “We are shocked that such a draconian legislation is being introduced in the name of curbing the widespread violence against women and girls. 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.”
The signatories to the letter have especially raised concerns about the alleged “presumption of consent” in offences of rape, death penalty for those accused of rape and penetrative sexual assault against children as well as the provisions enabling action against supposedly false cases.
The Shakti bill proposes to amend the definition of rape to state that valid consent will be presumed if the two parties are adults and their conduct or circumstances suggest that there was consent or implied consent.
The letter criticised the government for feeding into the patriarchal construction of consent and conduct of women.
“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. Such an explanation negates and nullifies the very offence of rape,” the letter noted.
The activists also said that the death penalty for such offences will be counter-productive since it is the certainty of investigation, trial and punishment rather than its severity that act as deterrents.
They added that the death penalty reduces conviction rates and rates of reporting, poses a danger of life to rape survivors and also causes mental trauma since sexual offences against children are often committed by persons known to the survivors.
The signatories noted that the inclusion of punishment for allegedly false cases also “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”.