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Explained: Why womens’ rights activists have criticised Maharashtra’s Bills against sexual offences

While the new law will entail enhancement of punishment for offences of rape, gangrape and penetrative sexual assault of children, the women’s rights activists say this will be counter-productive.

Written by MAYURA JANWALKAR , Edited by Explained Desk | Mumbai | Updated: December 16, 2020 10:28:57 am
maharashtra rape law, maharashtra crime law, maharashtra violence against women, maharashtra news, indian expressOne of the Bill will be enacted as Shakti Act, 2020.

Two bills cleared by the Maharashtra Cabinet last week are expected to be tabled in the Legislative Assembly during the two-day Winter Session that began on Monday (December 14).

But the Bills — The Maharashtra Shakti Bill, 2020, and The Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020 — that enhance punishment for violence against women and children, and include the death penalty for some offences, have been criticised by prominent women’s rights advocates for being “draconian” and “anti-women”.

Who are the individuals and groups opposing the two Bills?

The letter sent to Maharashtra Chief Minister Uddhav Thackeray opposing the two Bills has 92 signatories including women and child rights groups, lawyers, activists, academics and LGBTQ+ rights activists.

Signatories include senior advocate Indira Jaising, lawyers Veena Gowda and Susan Abraham, lawyer and child rights activist Mahrukh Adenwalla, activist Ulka Mahajan, law professor Dr Asha Bajpai, and faculty members from Tata Institute of Social Sciences (TISS).

Members of organisations such as the Mumbai-based queer feminist LGBT collective LABIA, Akhil Bharatiya Janwadi Mahila Sangathana, women’s rights forum Awaaz-e-Niswan, and Forum Against Oppression of Women, are among the signatories.

What are their objections?

In their letter to Thackeray, the signatories have said that the two Bills — framed on the lines of The Andhra Pradesh Disha Act, 2019 — should have been discussed with lawyers, activists, and academics working on women’s issues before they were passed by the state Cabinet.

An amendment has been proposed to Section 375 (rape) of the IPC, to add an “explanation” that says that in cases where parties are adults and their conduct suggest there was “consent or implied consent”, a presumption of consent will be made. This, the activists say, “feeds into the patriarchal construct of consent and conduct of women”.

Consensual sexual intercourse is very often used as defence by accused in cases of rape — and with such an explanation inserted into the law, proving rape will be impossible, they say.

Again, Section 12 of The Special Courts and Machinery for the Implementation of Shakti Act, 2020, will punish the filing of false complaints. This, according to the signatories, “perpetuates the patriarchal notions of viewing women with suspicion, as unworthy of being believed” — and will deter victims from reporting sexual offences.

The signatories have said that existing laws cover offences like intimidation of women through electronic media or punishment for public servants who fail to assist investigation. But these, they have said, are nugatory, and effective only in making a political statement. 📣 Follow Express Explained on Telegram

But why is there opposition to speedy delivery of justice — 15 days for investigation and one month for trial — as has been proposed?

According to those opposed to the two Bills, this time-frame will not be sufficient for gathering all evidence — and will become an excuse for police to not conduct a proper investigation.

Also, a hurried investigation and trial, they said, is likely to lead to miscarriage of justice. “Neither the police nor the Courts have the infrastructure to comply with these time frames and the same will only result in unfair trials and more acquittals,” they have written.

And what is the argument to oppose the hanging of perpetrators of sexual offences against women?

While the new law will entail enhancement of punishment for offences of rape, gangrape and penetrative sexual assault of children, the women’s rights activists say this will be counter-productive.

In several offences of rape of adult women or under the Protection of Children from Sexual Offences (POCSO) Act, the perpetrators of the crime are family members. If the offence is made punishable with death, many victims may not find support from their families, which will result in the offence going unreported.

In addition, it would endanger the lives of victims as seen in some cases in which the offenders have killed the rape victim if murder and rape both attract the same punishment.

This sends a “wrong and lethal message” to rape survivors, the signatories have said. “The message it sends is that after an incident like rape her life is as good as over; she is as good as dead,” they have written. They have also stressed that women and child rights activists and scholars have repeatedly stated that the death penalty reduces both the reporting of sexual offences and of conviction rates.

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