Shakti Act

In a bid to curb crimes against women and children in Maharashtra and outcry from the activists
acting in this filed, the state cabinet has approved a draft bill called the Shakti act that has provisions
for stern punishment, including the death penalty, life sentence, and hefty fines against perpetrators. A
statement from the Chief Minister’s Office (CMO) said that two bills will be tabled in the legislature -
the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, and the Special Court &
Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020 - to give shape to the law
against perpetrators of crime against women and children.

Maharashtra Home Minister Anil Deshmukh had visited Hyderabad earlier this year to study the
Disha Act. A Cabinet sub-committee headed by Public Works Department Minister Ashok Chavan
was set up in March to finalise the drafts of the Bills. The Shakti Bill has been referred to a joint
select committee of MLAs and MLCs for review.

Key Features:-

 The draft bill seeks to amend relevant sections of the Indian Penal Code (IPC), the Code of
Criminal Procedure (CrPC) and the Protection of Children from Sexual Offences (Pocso) Act.
  It provides for completing probe in a case within 15 days and trial within 30 days. Therefore,
there is a stipulated time frame for completing the investigation and trial.
 Stringent punishment, including the death penalty and heavy fines on the perpetrators is a key
feature of the draft bill. The perpetrators will be punished with imprisonment for life for not
less than ten years but may extend to the remainder of natural life or with death in cases
characterised as ‘heinous’.
 Special police teams and separate courts will be set up for investigation and trial of cases
against women and children under the new legislation. As many as 36 special courts, each
having a special public prosecutor have been proposed to be set up.
 In cases involving acid attacks, a sum of Rs 10 lakh will be given to the victim for plastic
surgery and facial reconstruction and the amount will be collected as fine from the accused.
 Some cases will be tried in-camera for the recording of evidence of victims and witnesses
who are vulnerable.
 The draft bill also incorporates provisions with respect to social media. Threatening and
intimidating women on social media will be an offence with a maximum punishment of two
years and a Rs 1 lakh fine. This also includes uploading morphed videos of women or
 threatening them with uploading of photos, videos which could defame, cause disrepute to
them or violate their privacy.
 The bill also proposes setting up of a “Women and Children Offenders Registry” linked to the
National Registry of Sexual Offenders with details of persons convicted of specified offences
of sexual violence against women and children. 1

Provisions for “false” information and “implied consent”

The Bill also makes provision for making a “false complaint” or provides false information in respect
of offence committed stating that anyone who does that “solely with the intention to humiliate, extort
or threaten or defame or harass” a person shall face imprisonment for a term up to one year or fine or
both.
The Bill also proposes to add an explanation to Section 375 (rape) of the IPC. “Rape committed in
circumstance including but not limited to some form of assurance including promise of marriage or
understanding between the parties, where they are consenting adults, and from conduct it appears that
act has been committed with consent or ‘implied consent’ may be presumed that valid consent is
given.” The existing law does not have a blanket assumption of consent being implied in such cases.
The Bill also states that the government will set up institutions like the One Stop Centre for providing
victims rehabilitation, legal aid, counselling, medical support which have already been proposed in
various schemes like Manodhairya in the state.

Shorter timeline for investigation and trial may be unrealistic

The Bill expedites the timeline for the investigation, trial, and disposal of appeal for certain offences
against women and children such as rape, gang rape, and acid attacks. As per the proposed Bill, the
investigation should be completed within 15 working days (extendable by seven days) after filing the
FIR, the trial should complete within 30 days of filing the charge sheet, and appeals must be disposed
of within 45 days.

Reducing the time further, may not give sufficient time to the police and the judiciary to complete the
relevant procedures. Further, there is a severe manpower shortage in the police department and the
courts in Maharashtra which could impact the timely resolution of cases.

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https://www.hindustantimes.com/india-news/shakti-act-maharashtra-s-new-bill-on-sexual-crimes-to-have-
death-penalty-hefty-fines/story-VD6Muv0aAFotsjgbVXgCpJ.html
Sharing of data for investigation without safeguards may restrict the right
to privacy

Under the Bill, social media platforms and telecom service providers will be punished for failure to
share information with the Investigation Officer for investigation of crimes against women and
children. Such punishment could include imprisonment of up to one month and a fine of Rs 5 lakh.

The Shakti Bill allows an investigation officer to seek information without a court order or a warrant
but does not provide any safeguards for when and what kind of information could be sought. This
may violate an individuals’ right to privacy.

Mandatory death penalty has been held as unconstitutional

The Shakti Bill provides for the death penalty for causing grievous hurt by acid attacks, rape, and
gang rape. It also provides for the death penalty for penetrative sexual assault of a child below 16
years of age. The death penalty will be awarded when the offence is heinous in nature and the
circumstances warrant exemplary punishment. This could be interpreted as the Bill providing for the
mandatory death penalty in such cases.

The Supreme Court has held that mandating the death penalty for any offence is unconstitutional as it
violates Articles 14 (right to equality) and 21 (right to life) of the Constitution. Before opting for the
death penalty, the circumstances of the ‘crime’ and the circumstances of the ‘offender’ must be taken
into consideration. However, under the Shakti Bill, the death penalty will apply when the crime is
heinous and the circumstances warrant exemplary punishment; which may not factor in the
circumstances of the offender.

There is also the question of whether the death penalty should be awarded for rape. The death penalty
for rape could deter individuals from committing the offence, and provide retributive justice for the
victims. However, the Justice Verma Committee (constituted after the Delhi gangrape case) noted that
though rape is a violent crime, the punishment should be proportionate and the death penalty should
not be applied, as it is possible to rehabilitate the survivor.

As noted earlier, Parliament has passed laws to allow for death penalty for certain rape cases such as
where the accompanying brutality leads to death, and in cases of repeat offenders.

While the Shakti Bill enhances punishments for certain offences against women, experts have
suggested various other steps that may be taken to improve the safety of women. These include: (i)
strict implementation of laws to protect women, (ii) better infrastructure for women safety such as
CCTV and panic buttons in all public transport and increase in the number of women police officers,
and (iii) increased public awareness about laws on women safety and consequences for violating these
laws.

Following reforms will be needed to implement the act nation-wide.

 Many women may not file a complaint knowing that a family member will be
executed so we need a better reform or rehabilitation programme for the accused.
 The accused getting death penalty will be the root cause for the death of the victims as
accused will leave no evidence, hence killing the victim. So, we need to improve the
infrastructure in the courts for cases that deal with crimes against women.
 A hurried investigation and trial would more often than not lead to miscarriage of
justice, so the tenure for the investigation and trial needs to be improved.
 Perpetuates the patriarchal notions of viewing women with suspicion, as unworthy of
being believed and likely to incriminate men in false cases for unscrupulous purposes.
 This is a short cut. Lawmakers are missing the point. It is not severity of punishment
that will act as a deterrent. There must be consistency and certainty. If I know there
will be a thorough investigation and I know it works, that is a deterrent. Focus on
making that system work, rather than adding layers. There is so much they can do. For
example, better forensic labs, counselling and sympathetic medical examinations
could be a beginning. Strengthen, improve the attitude of the courts on this issue and
sensitise the existing framework of the laws pertaining to crimes against women.
 CEHAT’s study highlights that 70% of women had to make more than one visit to
police stations for registering their complaints. Survivors shared how police
investigating officers kept questioning them and treated them as if they had
committed a crime. Police stations need to be victim friendly and more of lady
constables should be there so that the investigation doesn’t put the victim in shame or
embarrassed.
 With proposed amendments, there are chances that police will pressurise the survivor
to not file a complaint at all. The investigating team will be forced to wrap up the case
too quickly without any eye to detail. 
 The Director of Public prosecutor has the jurisdiction to ensure that the Public
Prosecutor for a rape case continues till the trial period is completed. Hence, the
 significance of the proposed amendment is uncertain. The amendment doesn’t address
the problems in the role of Public Prosecutor and their interface with women.
 The proposed act doesn’t build on the experiences of survivors in their interface with
police, hospitals and court. It fails to address the secondary victimisation of survivors
by various service providers which discourages survivors to fight for justice.  
 Lastly, the law undermines the purpose of a women-centric law by proposing
punishment in cases of false complaints. By introducing this amendment, the Act will
definitely reduce the reported cases but not the actual sexual offences happening with
women and children.