Shakti bill: Will deny hope of justice, 90 groups tell Maharashtra CM

Over 90 women’s rights groups, activists, lawyers and academics wrote to Chief Minister Uddhav Thackeray last week stating that the bills would “completely deny women any hope of justice” and sought “a larger consultation with activists, lawyers and academicians who are working on these issues”.

Women’s rights groups have opposed sections of the newly-tabled Shakti bill, likely to be taken up Tuesday, for introducing the death penalty for rape, gang rape and penetrative sexual assault against children, and for suggesting an amendment to Section 375 on presumption of consent, which they said would make it difficult for the prosecution to establish the offence of rape.

Maharashtra chief minister Uddhav Thackeray. (HT Photo)

State home minister Anil Deshmukh tabled the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, and the Special Courts and Machinery for the Implementation of the Shakti Bill, 2020 on the first day of the winter session on Monday, The bills propose amendments to criminal laws in the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Protection of Children from Sexual Offences Act, 2012 (Pocso Act), as well as seek the establishment of special trial courts. Once passed, the bills will also require the Centre’s nod.

Over 90 women’s rights groups, activists, lawyers and academics wrote to Chief Minister Uddhav Thackeray last week stating that the bills would “completely deny women any hope of justice” and sought “a larger consultation with activists, lawyers and academicians who are working on these issues”.

The issue of consent has remained a contentious one in the history of sexual assault legislation. In 2013, the Justice JS Verma Committee — formed after the death of the 23-year-old physiotherapist who was brutally assaulted in Delhi by a group of men — arrived at a set of amendments to the Criminal Law to provide for a quicker trial and enhanced punishment in cases of heinous assault against women.

The Criminal Law Amendment Act, passed in 2013, amended Section 375 (which penalizes rape) to explain consent as “unequivocal voluntary agreement”, “through words, gestures or any form of verbal or non-verbal communications” — this was not part of the penal code previously, and clarified that the absence of “no” on part of a woman in the act of sex cannot be construed as a “yes”.

The Shakti bill seeks to add an explanation to Section 375 — “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” — which, legal experts said, negates the clarity offered by the current law.

“In a lot of cases, the accused takes the plea of consent. 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 stated.

Women’s rights activists have also raised concerns over the introduction of the death penalty for specific heinous crimes, including penetrative sexual assault against children and gang rape, which they said will not help survivors of assault. “It is the certainty of investigation, trial and punishment that works as a deterrent rather than the severity of punishment,” it added.

Veena Gowda, who practices with the Bombay High Court and is one of the signatories of the letter said, “The government should implement existing laws to curb violence against women, and have dedicated gender budgets. The provisions of the Shakti bill have been made without considering similar, already existing provisions in the law.”

The bills also seek to punish the filing of “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.

This would only prove to be a deterrent to women from filing complaints or providing information regarding sexual offences, leading to a lower reporting rate for sexual offences, activists said.

Nandita Shah, co-director of rights group Akshara Centre, and one of the signatories, said, “The way they are looking at false cases, and even the clause on the death penalty will only end up leaving women more vulnerable. So while the intention might be that the government wants to protect women, it doesn’t have to be done in this way. We are hoping they will take some criticism on board, and not pass the bill without further discussion. If it gets passed on Tuesday, we will have to look for ways for protection against clauses.”

The Shakti Bill has been tabled along the lines of the Disha Act, passed by the Andhra Pradesh legislature in February, which also carried stricter punishments including the death penalty for heinous crimes of violence against women and children, a 21-day deadline for the trial of brutal assault cases, and penalizing the harassment of women on digital and social media. The Shakti bill mandates investigation and filing of the charge sheet within 15 days and the trial to be completed in 30 days after filing of the charge sheet.

Chandra Iyengar, former home secretary of Maharashtra said, “It is important to have a legislation with dedicated provisions to curb violence against women and children. It is the state’s attempts to show vulnerable groups that the power of the state is behind you. Some aspects of the bill definitely need more debate, such as the clause on presumption of consent. However, with respect to the death penalty, my view is what other equally stringent punishment exists to deter perpetrators of violence?”