Shakti Bill 2020 Representation by organisations and individual LA Bill No LI of 2020
Majlis Law
Dear Friends,
Please find the submission on Shakti Bill LA Bill No LI of 2020 by individuals and organisations concerned with the rights of women, children and other marginalised groups. We believe some of the proposed provisions may have an adverse and detrimental impact on women and children. We have also made several suggestions on what needs to be done to improve implementation of the law. If you agree and wish to endorse, please send your endorsement latest by 2 pm tomorrow, i.e. 15th January, 2021 using the following link:
14th January 2021
The Chairperson & other members
Joint Select Committee
Sub: Representation of organisations and individuals, such as academicians, lawyers, social workers, concerned with the rights of women, children and all marginalized groups, regarding the SHAKTI Criminal Laws (Maharashtra Amendment) Bill 2020 and the Maharashtra Exclusive Special Courts (for certain offences against Women and Children under SHAKTI Law) Bill 2020.
Ref: L.A. Bill No.LI of 2020
Hon’ble Members,
We, the undersigned organisations and individuals, such as, academics, lawyers, social workers, are concerned with the rights of women, children and all marginalized groups.
We thank the Joint Select Committee for scheduling consultations with various stake holders before tabling the bill in the State legislature as it will give us an opportunity to interact with yourselves and voice our concerns and make suggestions.
Our comments are on the basis of our experience of working with women and children who enter the criminal justice system as victims of sexual violence. We have always strived to safeguard the best interest of victims. We understand the ground realities faced by them and it is in this context, we are venturing to give our response
Based on our experience we believe some provisions of the proposed SHAKTI Criminal Laws (Maharashtra Amendment) Act 2020 and the Maharashtra Exclusive Special Courts (for certain offences against women and children under SHAKTI Law) Act 2020 may have adverse and detrimental impact upon women and children who are the vulnerable segment of our society.
1. Patriarchal presumptions beneath certain proposed sections: While the Bill claims that it is being introduced to curb sexual violence against women and girls and to provide them greater security, we find it quite shocking that it is premised on certain archaic anti women patriarchal presumptions.
False Complaints (Section 12 of Shakti Bill) The above section regarding false complaints is based on the archaic anti women presumption that women are manipulators and they ensnare men and later they implicate them by filing false complaints of rape. Though there is a likely hood of all laws being misused, yet this premise is raised only in cases concerning women. This could lead to reaffirming this archaic view which may lead to the accused persons filing counter cases against victims of sexual abuse. The proposed provision does not take into account acquittals due to faulty investigation and the hurdles faced by the investigating agency while implementing the law on the ground.
Implied Consent (Section 375 of IPC) regarding rape of adult women contradicts the principle of presumption of guilt in rape cases. Especially since in most cases the accused persons take the plea that the victim had consented, adding this provision will give a boost to this plea by the accused, and make it impossible to establish rape. In an environment where judges themselves suggest that marrying the rapist is the most logical solution to the problem, introducing this presumption goes against the very grain of criminal law on rape and serves to undo the gains brought about through various amendments to the rape law. It is a throw back on the age old belief that when a woman says NO, she means YES which is extremely humiliating to women during the trial.
We urge the State to delete these 2 sections.
2. Death Penalty (Section 376 of IPC): This provision is already included both under the POCSO Act as well as IPC. In the Shakti Mills rape case three accused were awarded death penalty as ‘repeat offenders’. Similarly after the Kathua rape and murder of a 10 year old child, the POCSO Act was amended and the provision of death penalty was introduced. So it defies logic of reintroducing this to offences termed as ‘heinous crimes’ from the earlier ‘rarest of rare’ cases.
It is well established that in cases of sexual abuse, the perpetrator is usually a ‘known person’. Maharashtra data shows that in 98.8% of penetrative sexual assault and aggravated penetrative sexual assault offences, the accused is a ‘known person’. Proximity of relationship between the child and accused results in sexual offences not being reported.
Introduction of capital punishment in such cases would result in added conflict and trauma to the victim. This could lead to dissuading the victim and her family from reporting the crime or even turning ‘hostile’ (not supporting prosecution’s case) during trial leading to acquittal. Harshening the punishment could worsen the situation as the victim will be under greater pressure to not report the crime or to turn hostile in court.
In the 2019 amendments to the POCSO Act, punishments for certain sexual offences were increased. Crime in India 2019 data shows that the all-India rate of conviction for penetrative sexual assault and aggravated penetrative sexual assault is 34.7%. Rate of conviction for crimes against children in Maharashtra is 25.1%. It is necessary to explore the reasons why the rate of conviction is so low and the steps that may be taken to address the same.
We thus urge the State to delete this section.
3. Mandatory Reporting (Section 39 of CrPC): The provision of mandatory reporting to the magistrate or the police authority by anyone who is aware about the offences may be necessary under POCSO where minors are concerned, but in cases of sexual assault on adult women this is a cause of serious concern particularly in cases where the victim does not wish to report the offence. This is a case of ‘doomed if you do, and doomed if you don’t’, as the popular saying goes. If you do not wish to report, the system forces you to do so under the provision of mandatory reporting, but if you do report, archaic notions of “Implied Consent” or ‘False Complaint’ can be used to humiliate the victim during investigation and trial. This is the irony of the proposed amendment.
4. Time Frames: Reducing the time period for investigation and trials relating to sexual offences is futile as the current stipulated time period cannot be adhered to. Under the POCSO Act, a trial is to be completed, as far as possible, within one year of the charge-sheet being filed. Crime in India 2019 denotes that 88.4% of cases of penetrative sexual assault and aggravated penetrative sexual assault were pending at the end of that year. In Maharashtra, the pendency in 2019 of crimes against children was 93.5%. The Bill stipulates some unrealistic time frames which may lead to shoddy investigations and harm the cause of prosecution to secure conviction. The present infrastructure is inadequate to meet the timelines proposed; and if the fixed time limits are not met, the accused’s lawyer will take advantage of such lapse.
Time Frame for Investigation (Section 173 of CrPC): The shorter time period recommended for the completion of investigation would be insufficient for the police to conduct a thorough investigation leading to a weak case which might end in acquittal.
Time Frame for Trial (Section 309 of CrPC): At present the courts lack the infrastructure necessary to effectively dispose off cases within the prescribed time frame of 60 days. Unless the present infrastructure is greatly enhanced, this provision will only serve to and to the already existing backlog and lead to insurmountable delays. On the other hand, a hurried trial may result in grave miscarriage of justice. While as the popular saying goes, ‘justice delayed is justice denied’ at the same time, ‘justice hurried is justice buried’. So there is a need to avoid both these perils by laying down a carefully balanced procedure.
5. Women and Children Offenders Registry: Studies conducted in countries that have set-up such Registry indicate its adverse impact upon the accused and his family, as also upon society, and that it is a violation of the fundamental principles of criminal law and right to privacy.
We thus urge the State to delete this section 10 (1).
6. We urge the State to strengthen mechanisms for implementation of laws on sexual violence: We believe that the prevailing laws relating to sexual offences against children and women are adequate. The main concern is implementation of the existing laws relating to sexual violence.
The state should focus on strengthening implementation of the laws on sexual offences in Maharashtra. Creating appropriate enabling environment infrastructure / arrangements for victims in police station and courts throughout Maharashtra; establish structures and appoint qualified human personnel as envisaged under the law / schemes; appoint ‘support persons’ and lawyers for victims from pre-trial stage; compensation and other rehabilitation measures; regular external audits to identify malaises in the system; etc. and budgeting for the same to assure its implementation; prepare Victim Protection Protocols for police stations / police personnel; to fill-up vacancies in courts, statutory functionaries; commission research studies to identify factors ailing the criminal justice system; establish a robust Victim and Witness Protection scheme / legislation; offer multi-fold rehabilitative measures for victim / survivor.
Monitor timely completion of trials: Currently the law provides a stipulated time period for completion of trials in sexual offences. But it has been observed that this is often not adhered to. There is a need to set up machinery to strictly monitor the system and in cases of inordinate delays, find out the root cause of delay, and take effective remedial measures.
Preventive action Legislative emphasis has always been on remedial action (after commission of the offence), scarce attention is paid on preventive action to explore necessary initiatives to prevent commission of sexual offences against children and women.
Implementing the above will improve implementation of the laws on sexual violence and make Maharashtra a model-State.
7. Extend the deadline for suggestions: Great effort and energy has been spent by civil society organisations and individuals in preparing well-thought suggestions and we request that individual time slots be allocated to allow them to explain their submissions before the committee. This will help the committee get a better understanding of what should be done to protect women and children from sexual violence.
We urge you to extend the time limit by at least fifteen days.
We request you to please give us a date and time to present before the Joint Select in Mumbai.
In case of any clarification, please feel free to contact
1. Adv. Audrey Dmello (Director, Majlis) at 9820633222 (majlis...@gmail.com)
Yours faithfully,
[Endorsements to be added here]
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