Shakti or Ashakti

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The recently proposed Maharashtra Shakti Law(Maharashtra Amendment Act) 2020 and the Special Courts and Machinery for the Implementation of Shakti Act, 2020 in the Maharashtra Legislative assembly can best be regarded as a double edged sword. The Cabinet led by Chief Minister Uddhav Thackeray have classified it to be as an “effort to criminalize acts like acid attacks, derogatory content posted against women on social media” which have not been explicitly covered under the provisions of colonial period statutes like the indian Penal Code (IPC) 1860, Criminal Code of Procedure(CrPc) 1973, and the Protection of Children Against Sexual Offences (POCSCO), 2012. The state government further attested that the bills were drafted after much consultation with all relevant stakeholders involved. Back in January, Maharashtra’s Home Department formed a 5 member committee which was led by Aswathi Dorje, director of the Maharashtra Police Academy to propose recommendations to the state cabinet. In March after the drafts were ready, an additional subcommittee was formed under the Department of Public Works, Maharashtra Government to scrutinise these recommendations. However this sub committee consisted of only two female lawmakers – Education minister Varsha Gaikwad and Congress’s Yashomati Thakur.

The act takes inspiration from the Disha Act, recently passed in the state of Andhra Pradesh after the brutal gangrape of a 29 year old veterenian. The proposed legislative framework goes far as to propose the death penalty with reference to the crime, technique as well as gravity of it. An interesting provision includes civil compensation from an acid attacker to the victim, for conducting a plastic surgery and other medical ressurections. While these provisions are indeed laudable, several can be considered as a severe step back from our aim of the kind of society we are trying to establish for women. And this is where the bill loses its essence. To give a prominent example.

Chapter II Amendment to Section 375 of the Indian Penal Code, 1860 states:

“After Exception 2 and Explanation 2, the following words shall be added:

“When the acts referred to clause (a) and (d) above are committed in circumstances where parties to such acts are adults and from the conduct of such parties and from all circumstances surrounding the same, it appears that the act was done with consent or implied consent, it may be presumed that valid consent was given”

This Amendment which seeks to add Explanation 3 to section 375 i.e. 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, negates the essence of definition of rape as enshrined in section 375 and further promotes a patriarchal understanding about conduct of women not only outside their house but in their conjugal life as well. consent cannot be construed in such a narrow sense and defies the legacy of women’s empowerment we have been committed to post independence.

Instead of “presumption of consent” it should be “substantively proven that the act was done with informed consent” to avail the exception”

Within the second bill, The Special Courts and Machinery for implementation of the Shakti Criminal law consists of several clauses that fails to recognize psychological trauma that assault victims go through and are modelled along an utopian idea, without taking into account the forensic infrastructure, volume of cases in courts, logistics of police force, and medical recovery period for the victim.

Section 16 of the Bill states:
“(1B) In relation to offences under section 326A, section 326B, section 376, section 376A, section 376AB, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the investigation shall be completed within a period of fifteen working days from the date on which the information was recorded by the officer-incharge of the police station

Realistically speaking in reference to the available infrastructure, volume of cases, time period required to obtain forensic reports, 15 days seems insufficient and will lead to a hurried approach. The time frame suggested by this Bill of 15 days for investigation and 1 month for trial will result in more botched up investigation and unjust trials. The same opinion was even resonated through the letter jointly written by over 90 lawyers, activists to Home minister Anil Deshmukh. 

The bills are proposed in good faith with the intention of making Maharashtra a safer state for women, but we cannot ignore the carelessness and unrealistic approach that the state government has undertaken. Draconian as the punishments for “false registrations of rape cases” are, the bill promotes an aura that majority of rape cases lack verity and need to be dealt with provisions apart from those already existing in Section 209 of IPC. It is high time a close review is required.

– Aarushi Prasad,
Writer, Bharat Bhagya Vidhata

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