The Maharashtra government might be of the opinion that the Shakti Bill is a landmark decision. The Shakti Bill has been tabled along the lines of the Disha Act, passed by the Andhra Pradesh legislature in February, which also carried harsher sentences including the death penalty for heinous crimes of violence against women and children, a 21-day deadline for the trial of cruel 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.
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. There are concerns about the alleged “presumption of consent” in offences of rape, the 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 government is 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 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. 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 inclusion of punishment for allegedly false cases also disseminates the patriarchal notions of viewing women with suspicion as unworthy of being believed and likely to incriminate men in false cases for unscrupulous purposes. 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.
While the introduction of stricter punishments might provide a delusion of justice, it is consistency in the implementation of the existing laws and not a mere increase in the strictness of punishments that will act as the real deterrent to rape. Certainty refers to the certitude of due process, celerity refers to the swiftness in the disposal of justice, and severity refers to the stringency of consequences that one would have to face as a result of committing an offense.
Though increasing the stringency of punishment might ensure the component of severity, it is only when offenders know that the punishment will be certain, swift and uniformly applicable irrespective of their socio-economic standing, can deterrence be ensured in the real sense. The realist school of thought talks about the concept of a ‘bad man’ who cares little about ethics and morals, and instead his actions are only dictated by whether or not they will lead to punishment. For such a person, deterrence can only be ensured if the state would have kept all three of these elements in mind while drafting legislation.
Moreover, the state must ensure the consistent and uniform application of existing laws, so as to prevent the inconsistent captivity of the members of marginalized communities. While the introduction of deadlines for the completion of investigation and trial is a step towards celerity, the government fails to recognise that adequate state machinery is a precursor to ensuring this swiftness. The recent reports regarding the vacancies in the Bombay High Court and the Maharashtra Police paint a grim picture. The Maharashtra Police is understaffed by 28,550 police officers, while the Bombay High Court only has 64 judges against the sanctioned strength of 94. Further, data reveals that 69% of all cases tried under the POCSO Act by the special courts took anywhere between 1 to 10 years, despite the fact that it provides for the completion of the trial within a year of taking cognizance of the offense wherever possible.
The token increase in the severity of punishments only acts as a consolation prize to a distressed populace. This is apparent from the fact that the same government, which introduces the death penalty for rape, does little to ensure the availability of well-equipped treatment centres and prevention mechanisms to deter sexual harassment. It is the need of the hour for the government to provide higher funds for the strengthening of law enforcement bodies, include sex education in school curriculums, and initiate a more open conversation about the significance of consent and what it really means.
Moreover, crimes like cat-calling, voyeurism, domestic violence, stalking, etc. should be dealt with seriously and society as a whole must stop disseminating cultural media that normalizes these forms of harassment. When we condone these ‘lesser’ forms of crimes, we empower the perpetrator to carry out more heinous crimes. Hence, the uncomfortable question that first needs to be addressed is what makes a person sufficiently desensitized to act on the desire to violate someone’s sexual sovereignty? While society seeks comfort in alienating the rapist, what we must contemplate over is, was the perpetrator born this way, or was he fashioned to be so?
In the end, the Shakti Bill of 2020 proposes to provide higher rigour as a trade-off against institutional reforms that are actually necessary in order to ensure real deterrence, by creating certainty of conviction. And while it is the right of the government to act as an engine for social change, the Shakti Bill appears to be a shallow attempt to appease the public, without actually bringing in any well imprinted out action, that would help in reforming the very society that creates that mammoth.