Coming under fire from women’s and child rights activists across the state, the Maharashtra government on Monday, 15 December, decided to refer the Shakti Bill to a joint select committee.
But where did the legislature that sought to curb violence against women and children go so wrong? On multiple counts, say activists who list out some of the glaring problems with the Bill.
The three key criticisms of the Bill are that it proposes an enhancement in the punishment for rape, gang rape and penetrated sexual assault against children by including death penalty. It stresses upon the presumption of consent and lays out an unrealistic time frame for investigation in a case and its trial.
To understand these The Quint spoke to Women’s Rights Lawyer Veena Gowda, TISS’s Programmes Coordinator Aarthi Chandrasekhar and Lawyer and Child Rights Activist Maharukh Adenwalla.
Death Penalty for Rape
Veena Gowda said, “What happens is that whenever we speak of safety of women and security of women, every government wants to do its bit. So then, the pitch goes very high, and the higher it goes, they say that, ‘Okay then we will have death penalty...’ That's also a very patriarchal notion.”
Aarthi Chandrasekhar feels that several studies have shown that severity of punishment is hardly a deterrent and it could add to the burden on the survivor. “What is deterrent is the consistency of punishment,” she believes.
“It’s actually on the conscience of the individual, isn’t it? Where you’re saying that then you have to decide and based on how you testify [sic.]...and it’s actually going to then deter them. Further, the amount of pressure that they themselves are going to face from people around them, to take back what they had said or not report it, is going to be way higher.”Aarthi Chandrasekhar, Programmes Coordinator, RCI-VAW, TISS
When considering survivors of sexual assault, who are minors, the implications are worse, Maharukh Adenwalla adds and goes on to explain, “With regards to children, if you just look at crime in India, it very clearly states that the majority of the accused are persons known to the child, including family members. So you can imagine the pressure on the child when the child goes to court. A number of children are forced to turn hostile because of the pressure that comes from the family.”
Presumption of Consent
The Shakti Bill suggests adding a third explanation to Section 375 (which deals with charges of rape), which talks about the “presumption of consent”. It means that in case two adults are involved, the accused can appeal for "consent or implied consent".
Gowda says, “If there is a girl who has gone out on a Tinder date, and she's met somebody; she meets him a couple of times; they may make out a little bit, and then he ‘forces’ himself on her. Then, if she says that he raped her because it was against her consent[sic.], when she may have given consent to him for only kissing her, but not necessarily for a penetrative sexual act. Then, there is a possibility that the court might say the circumstances are such because she had gone out with him, she had met him a few times and that the ‘consent’ was implied.”
This only adds a ‘double burden’ on the survivor as she has to now prove that she did not give her consent to him. Which is nearly impossible, adds Gowda.
Weighing in on the argument, Chandrasekhar says, “There are a lot of layers to consent and that is what had been recognised earlier with a lot of advocacy. There are survivors when we work with them. Clearly, there is this sense of manipulation, control, under threat, and there are a lot of aspects around it. So, it cannot be as black and white in the way that they have now presented it and have taken away from the entire concept itself (the idea) of consent.”
Timeline of Probe, Trial Fast-Tracked
The Shakti Bill suggests investigation into a case has to be completed, the charge sheet has to be filed within 15 days, and the trial for the case has to be end in 30 days. This may seem ideal, but activists argue that this is unreasonable.
“The time frame that the bill provides is very unreasonable. Within 15 days, you are supposed to finish your investigation, within one month you are supposed to finish your trial, and within two months finish your appeal – which is near impossible with the kind of infrastructure and the kind of personnel in police or the judiciary we have.”Advocate Veena Gowda, Women’s Rights Lawyer
While dealing with the victim or the survivor, the accused has to be kept in mind as well, Adenwalla says, adding, “In a quest for speedy justice, justice cannot be denied... The accused also has a right to a fair trial. Let’s forget about the accused, but with regards to a child, if the reports haven’t come in, how are you going to talk about even getting justice to the child? The defence is going to take an advantage of all these loopholes.”
Women and child rights activists agree and emphasise on the point that proper implementation of existing laws is the need of the hour.
“I think it's important that the government implements existing laws and ensures proper implementation of existing laws, rather than going about making these changes, which are more like knee-jerk reactions and don't really serve a purpose. They are definitely not in the interest of either women or child rights,” insists Aarthi Chandrasekhar.