Rangan Majumdar, (Final Year Law Student, GLC Mumbai)
The Shakti Bill, 2020, cleared by the Maharashtra state cabinet, was welcomed by India, as a progressive step towards solving crimes against women. The Bill proposes several amendments to the Indian Penal Code, 1860 (IPC), The Criminal Procedure Code, 1973 (CrPC) and the Protection of Children From Sexual Offences Act, 2012 (POCSO). One of the key features, the prescription of death penalty as an alternative to life imprisonment for the remainder of one’s natural life, on the higher end of the punishment spectrum, grabbed headlines. The proposed amendment made the punishment for rape under Section 376 and the aggravated sections of 376D, 376DA, 376DB and 376E, equivalent to punishment for murder under Section 302.
So what are the problems of this seemingly perfect amendment?
There are broadly three issues with the current Bill.
A. Amendment to the definition of ‘Rape’ under Section 375 of Indian Penal Code:
The Maharashtra amendment proposes to add an explanation under the definition clause in the Indian Penal Code. The new clause, Explanation 3, derails years of activism that social workers, activists and organisations have worked for in establishing positive consent as a threshold for any engagement with women, especially ones that involve sexual activity.
The proposed explanation reads, “when the acts referred to in clauses (a) to (d) above, are committed in the circumstances where the parties to such acts are adults and from the conduct of the parties and circumstances surrounding the same, it appears that the act has been committed with consent or implied consent, it may be presumed that valid consent was given.”
First, the concept of implied consent has not found any explanation in the Act, nor has the amendment attempted to clarify the threshold for what constitutes “implied consent.”
Prima facie, it helps the perpetrator where no explicit consent was given but assumed by the perpetrator. This attacks the very nature of positive consent, assuming silence as consent.
Second, phrases like “from the conduct of parties”, circumstances surrounding the same” and “it appears” are capable of gross misinterpretation by courts and law enforcement bodies.
It leaves much to the discretion of the judges and the police officers with respect to conducting investigations or delivering justice. “Circumstances surrounding the same” has always hindered sexual assault victims from getting justice who are victim blamed by our flawed justice system into believing that their past behaviour or attire was the reason for the crime. It helps patriarchy to shift the blame from the perpetrator to the victim, leading to moral policing of women in society.
B. Amendment to Section 173 of Criminal Procedure Code:
Section 173 of CrPC lays down the law with regards the report sent by the Police Officer on completion of investigation. Shakti Bill, 2020, adds another subsection to limit the period of investigation to only 15 working days from the day of arrest of the perpetrator. It provides for an extension of time for investigation by a period of further 7 working days after the Investigating Officer submits reasons recorded in writing for such extension.
The problems with this amendment clause are strictly with regards the consequence of such unreasonable pressure on law enforcement. No investigation can be completed in 2 weeks, especially when the processes of questioning witnesses, recording statements, forensic analysis, etc. take months in some cases. This will only unnecessarily increase pressure on the Investigating Officer, resulting in false arrests, botched investigation and miscarriage of justice.
C. Introduction of Death Penalty as an alternative punishment to Life Imprisonment for Section 376, 376D, 376DA, 376DB, and 376E.
Death penalty has been introduced for the abovementioned sections of the Indian Penal Code as an alternative to imprisonment for the rest of the natural life of the offender, if convicted.
Problems with a Death Penalty in this regard are one too many:
1. The Dilution of Deterrence and Reformation.
Sure, one can argue that a Death Penalty is the highest level of deterrence in criminal law but normalizing it as a penalty offers no value in its deterrence.
There is little difference in the mindsets of the perpetrators, as has been observed by government data itself, in terms of the sheer explosion of crime numbers.
As per the latest NCRB report, around 32,033 cases (88 in a day!) were reported in 2019, 33,356 cases in 2018 and 32,559 cases in 2017.
And this is not even the real picture as majority of the cases go unreported.
Deterrence has lost its value. Criminals are not reforming.
2. The Hijacking of Conversations Around Root Problems.
It has hardly been a month now since the Shakti Bill was approved by the State Cabinet and yet, we see people on social media and all over the world heap praise on the Maharashtra government for the bold step. The discourse in national media is no longer about whether the law actually solves problems but of a tokenistic celebration of dealing with heinous crimes in a half-hearted manner. Also, it still does not address the fundamental issue of problematic mindset of people.
The Bill was sent for Joint Select Committee to review the impact of the Bill, after a national outcry of activists against it. It has not been tabled in the State Assembly yet, so there is still hope that our elected representatives reconsider the consequences, but given the nature of politics in India which prefers tokenistic gains of optics as a priority, it would take more than a few speeches to move them.