This article is written by Alka Nupur Singh who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
‘If a woman is not a “good” woman, men have right to teach them lesson by raping them, where she should silently accept the assault and allow the rape.’ An outrageous statement made by Mukesh Singh, one of the accused in the Nirbhaya rape case. The statement is not merely provocative and inflammatory but also is a mirror to some very deep-rooted underlying issues of our society. It is not only about sex and lust but it is somewhere more about a sense of power, control and authority. As per the Government of India’s statistics, in approximately every 22 minutes a woman is raped in India. NCRB data states that the crime rate per lakh woman population rose to 62.4% in 2019 as compared to 58.8% in 2018. No civilized society shall accept such detrimental conditions of women if it wants to develop and move on the path of social, political and economic growth.
Gender statistics by Census 2001, reveal that women in India constitute nearly 48% of the population. In a country where approximately half of the population constitutes women, a crime against this gender cannot be taken lightly. Hence, the Indian legal system provides various laws and legislatures for the protection of women and children under the Indian Penal Code and POCSO, along with several special laws which are specially enacted to empower women and protect them against any sort of atrocity.
Despite having various laws for the protection of women and children, we face a serious rise in crime against them as well. Last year, in a ghastly act a veterinarian in Hyderabad was raped and murdered. Raged by the offence, Andhra Pradesh Government enacted the Disha Act for the protection of women. On a similar line recently, on December 14, 2020, the Maharashtra government tabled in the State Assembly, the Shakti Criminal Law (Maharashtra Amendment) Act, 2020 and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020, which proposes some rigorous change to the existing law for the prevention of crime against women and children. It proposes to amend various provisions of Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offences Act, 2012 and its application in the State of Maharashtra. The key proposals in what shall commonly be called as “Shakti Act, 2020” are more stringent punishment such as death penalty for rape, increased quantum of punishment for acid attacks and sexual violence against children, and speedy trials etc.
There has been a constant rise in the cases of crime against women especially crimes related to sexual violence. The Shakti Mills rape case in Mumbai brought in question the safety of women in a metropolitan city like Mumbai, where a woman was gang raped in a broad day light, by five men, one among whom was a juvenile, when she was gone for a work assignment at Shakti Mill. Photographs of the victim were taken by the rapists and threatened to be released on social media if she complains. She was then forced to clean the place of the assault after which the rapists left the crime scene leaving the woman behind. In The State of Maharashtra v. Chandrabhan Sudam Sanap, where a young girl aged 22 was raped and murdered by a man, Bombay High Court noted that such an incident results in outcry by women asking questions about their safety and security in our country. It has been noted by the Bombay High Court that there are several incidents that have not been covered by the media and out of societal shame and threats are not even been reported to the Police. The government via Shakti Bill tries to address such unacceptable threats in our financial capital. The main reason given by the Maharashtra government to bring in this law is to control heinous crimes of this sort by stringent punishment and speedier investigation and trial, which is expected to deter the perpetrators from committing such offences.
The Indian Penal Code, 1860, deals with various crimes against women like rape, kidnapping, outraging the modesty of a woman, prescribing various punishment for such crimes. Here we are going to discuss different offences under IPC concerning women particularly in context of the Shakti Act 2020:
- Rape – Section 375,376, 376A, 376B, 376C, 376D, 376DA, 376DB and 376E
- Acid attack – Section 326A and 326B
- Assault to outrage modesty – Section 354
- Sexual harassment – Section 354A
- Assault on woman with intent to disrobe – Section 354B
- Voyeurism- 354C
- Stalking – 354D
For the cases of child sexual abuse, the Government has enacted a special law known as Protection of Children from Sexual Offences (POCSO) Act, 2012. It includes all the offences for the protection of children, from sexual assault to pornography. It also secures the interest of children by providing a child-friendly mechanism at every stage of the judicial process and incorporates speedy trials by special courts.
Amendment to the Indian Penal Code
- The Bill seeks for addition of Section 175A after Section 175 of IPC, which says that in the course of the investigation by a Police Officer if the Investigation Officer requests any internet service provider or social media platform or any mobile telephony any data for the investigation for various offences, related to women and children, the data shall be delivered within 7 working days, failing which it attracts simple imprisonment maximum of 1 month or fine of 5 lakh rupees or both.
- It also seeks for insertion of section 182A after Section 182 of IPC, which talks about false and frivolous cases. It notes that in case of any false case lodged by the complainant with the deliberate intention of harassment, the complainant shall be punishable with a simple imprisonment that may extend to 1 year or with fine or both.
- Amendment of Section 326A, which further extends the quantum of punishment in case of acid attacks, extending it to 10 years which may further extend to life imprisonment. Also in cases where the crime is of heinous nature with enough conclusive evidence provided, death punishment can be warranted. In case of medical expenses, the expenses as per the Bill include expenses for face reconstruction and expenses for plastic surgery, provided by the accused to the victim.
- The quantum of punishment is also increased for Section 326B of IPC, where the minimum punishment prescribed as per the Bill is 7 years but which may be extended to 10 years as well.
- Insertion of Section 354E in the IPC, which talks about the intimidation of women by any mode of communication, including social media to defame and disrepute that woman, which outraged her modesty and that shall attract imprisonment for 2 years and fine up to 1 lakh rupees.
- Amendment in Section 376, 376D, 376DA of IPC, where the Bill warrants death sentence in case of offences of heinous nature and where the evidence is adequate and conclusive.
Amendment to Code of Criminal Procedure, 1973
- Adding Section 37A in the CrPC, whereby any social media platform or mobile telephone data provider shall share data to the Investigating Officer in course of investigation for the probes in cases of POCSO and sexual violence against women.
- Amendment to Section 173 of CrPC, where the Bill proposes the investigation to be completed within 15 working days after the filing of FIR, which may be extendable to only 7 days more. In case the investigation is still not done, the reason shall be explained in a written report to the Police Commissioner or Special Inspector General of Police.
- Amendment to Section 309 of CrPC where the Bill states finishing of the inquiry and trial within 30 working days from the date of filing of the charge sheet.
- The Bill also talks about “in camera” proceedings in the presence of the Presiding Officer and the same shall be recorded as evidence.
- Amendment of Section 374 of CrPC, where the Bill states that the appeal filed with the higher Courts need to be disposed off within 45 days.
- The Bill also mentions the requirement of the presence of a public servant or two social workers while Investigation Officers make searches of places.
Amendment to POCSO Act, 2012
- The Bill seeks for life Imprisonment and heavy fines for offences under Section 4, 8, 10 of the POCSO Act.
- Death sentence for certain offences of grave nature.
Problem with death penalty
Many studies show that death penalty has outrightly failed to act as a deterrent in case of any crime. It is not always the extremity of the punishment that acts as the deterrent but consistency of punishment, certainty of an honest trial and implementation of law in the most appropriate manner along with the timely disposal of cases, rather than long years of pendency is what act as a dissuasion in such cases. When we are talking especially about the crimes related to the sexual assault and violence against a woman’s body, studies show that in most of the cases the perpetrators are not strangers and they are somebody known. They are either someone close or someone a child or a woman trusts. It is also established that most of the crimes related to sexual nature goes unreported as many tend to associate sexual assault and rapes as a matter of collective honor and morality in our society. Now in cases where the punishment for such crimes is moved to death penalty, women will be more hesitant to report for the cases where the perpetrator is someone from the family or close-knit. In fact, in such cases family will too dissuade from reporting cases related to minors or women.
Another problem with death penalty is that it inherently does not pass the “Test of Constitutionality”. As far as the present scenario of the Indian Penal Code, 1860 is concerned for punishment in the offences against women; judges do have an option of life imprisonment and death penalty. But in Shakti Bill, 2020, the only option present with the judge in case of a repeat offender is death penalty, which is also against Article 21 of the Constitution.
In fact, Justice Verma in his report mentioned death penalty as a regressive step even in the rarest of rare case, where he citied many studies show that deterrence by death penalty is “actually a myth.” Also in the “262nd Report: The Death Penalty”, a commission headed by Justice (Retd.) A.P. Shah, the report talks about abolition of death penalty in all sorts of crime except in the crimes related to terror.
Issue of Consent
The Shakti Bill, 2020 seeks to add Explanation 3 to Section 375 of IPC, establishing that with adults in cases where the circumstances show that there was consent or implied consent, a presumption of consent will be made out. As per the definition of rape in Section 375 of IPC first two ingredients for establishing the offence of rape is “Against her will” and “without her consent”. If we closely dissect these provisions of the definition of rape, we somewhere find it disturbing in itself. In our patriarchal mindset, the first burden is being on the woman where it is implied to establish that you must resist. If there is no resistance, it can be presumed to have consented and in cases where a woman has not suffered any physical injury in course of the resistance falls under a suspected category. This has been evident in a brutal Mathura Rape Case.
The issue with the presumption of consent also takes away the whole essence of the Bill in itself. We are living in an extremely digitalized era. To take an example, let’s suppose two individuals connect over Facebook or Instagram and decide to meet at the boy’s house. On their meeting they kissed and cuddled a little but then the woman denies having penetrative sex and eventually the boy forces himself upon the woman. Now, as per the Explanation added here in the Shakti Bill, presumption of consent can be established and it is very unlikely to fall under the category of rape. Besides, in the Indian judicial system a huge chunk of defense during the trial is seen to be based upon consent. Hence, to have such presumption negates the whole crux of the law in itself.
Also, when we presume consent, we somewhere are only validating sexual assaults by strangers. Whereas, many studies show that the majority of rapes and sexual assaults are done by someone who is in close contact with the victim or many times are in fact family members. Going with the theory of implied consent we are somewhere negating all such rapes and sexual violence around us.
Punishment in case of false complaint
The Bill seeks to punish the complainant in case of registering any false case and the punishment extends to imprisonment that may extend to 1 year or with fine or both. But the major question here is how would we prove any case to be a false case? It is of course by conviction. Now when we see the conviction rate in India, it is only about 32% in rape cases. So do we mean here that rest of about 68% of rape cases is false? This is a huge question that Bill puts forth. There have been many instances of careless investigation, bad trials that lead to the acquittal of offenders, and in such a scenario, this provision of the Bill will open a flood gate to file a complaint against women for reporting sexual harassment or rape.
Further, we must not forget that we have a patriarchal society where we are living in an environment of victim-blaming. Any woman comes out to report some sort of sexual assault, society sees her with a questionable character. Bringing such a provision will further bring down the reporting of sexual offences.
Issue with the time-frame
It is a common saying that justice delayed is justice denied. Perhaps it is right as well. One of the fundamental features for deciding the efficiency of the judicial process and restoring faith in the general mass with regards to the justice system is also how fast one gets that justice. The Shakti Bill, 2020 somewhere tries to address the problem of long pendency and long trial of cases. However, the time frame provided by the Bill, when seen from the social, political, infrastructural and political context, comes out to be unrealistic.
The Bill asks to complete the investigation within 15 days, which may be extendable to maximum of 7 working days more. It also states that the inquiry and trial shall be done within 30 days of the filing of the charge sheet. Though the intent here might be to get speedier justice, the number of days still is not very practical.
In India, there is already a huge tendency of cases before courts especially the lower courts. There is a shortage of police personnel in service. In fact, approximately 60% of cops are deployed with the “bandobast” duties and in VIP services. There are also other infrastructural problems with courts, shortage of judges, problems with digital education in courts and Police Stations etc. With such little time provided by the Bill, we anyhow cannot deny the fact that there is extreme possibility of botched up investigation and shoddy trials.
This probably will create a problem that goes in cycle. Suppose a woman, who has a live-in partner comes to police station and report sexual assault by her partner. Now there are two possibilities, 1) Police might conclude that there was an implied consent as they were in a live-in relationship. Here the Bill gives power to police not to register the FIR as the Bill talks about presumption of consent. This leads to the problem elaborately discussed in point 5.2 above. 2) Police register an FIR but because it is bound to finish its investigation within 22 days, in the name of speedier investigation fails to collect all the relevant evidence and botch up the investigation. When because of this the prosecution fails to establish its case and the offender gets acquitted, it will lead the case to fall in the category of false case. This directs us to the problem elaborately discussed in point 5.3 above.
Of course, everybody wants a speedier trial and believes it to be a mark of delivering justice but the time frame here has to be seen from the prism of the political and societal structure people are in. And accordingly, a realistic time limit has to be welcomed which delivers the essence of the legislature drafted.
The Bill also opens scope for preventive detention of 15 days by the investigating authority, which is against the “Test of Constitution”. The Constitution of India in Article 21 states that everyone has a right to life and liberty. Preventive Detention is not only against the right to liberty but also against the right to life. In many judgments passed by the Supreme Court of India, it has been pronounced that the right to life does not merely mean the right to have an animal existence. It extends the right to live with basic human dignity. Preventive detention used so loosely and power to extend it when is given in the hands of the executive denies that basic right to life that the Constitution of India gives every human being.
It also leaves the scope of settling personal vendetta, when any woman falsely implicates a man in a particular case and manages police to take the man in detention, which further allows corruption in departments.
The basic thing every human desire for is a life with dignity. Crimes such as rape, assault on the modesty of a woman, sexual harassment, acid attacks do not always happen because of the lacunas of law. It is an imprint of the image of society we are in. It does not always come from the place of lust and desire to have sexual intimacy. It is more of a manifestation of a patriarchal mindset, where a man is conditioned to have control over a woman, which gives him a sense of power and authority. Laxmi Agrawal, a victim of an acid attack is a stark example of how a man reacts to rejection from a woman (Laxmi v. Union of India and others).
Simultaneously, cultural modernization is leading more women to follow a lifestyle which traditional mindset considers transgressive and thus dating, pursuing careers and delaying marriages makes them fall under a category of “bad woman”. Victim blaming is nothing unknown to us. Our society fails to accept any sexual relation of a woman outside marriage, nevertheless, a heterosexual marriage.
It is obvious that we need some stringent laws to counter such crime, making approximately half of the population of India feel safe and secure. But rather than coming up with a new law, it is pertinent if we strictly implement those that already exist. Besides, a law which is made for women, simultaneously emphasizing on the punishment for false complaint, also is a law which is against women. There is already punishment of perjury. Section 211 of IPC exists. The probability of misuse of any law is always there but in every law different punishment for misuse is not there. Having it in a law which caters to women raises a huge question as to how we perceive our women in general.
Having said that, it is undoubtedly fulfilling that the State is recognizing the increase in such crimes and making efforts to combat the same. However, it does not take away responsibility from us to question our outlook towards women. In our society we somewhere have a mindset that sex is something that is done to a woman and not something that she is entitled to enjoy. We bitterly fail to recognize a female’s right to sexual pleasure. And until and unless we recognize this, we will hear many Mukesh Singh saying “When being raped, she shouldn’t fight back. She should just be silent and allow the rape.”
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