Maharashtra’s Shakti Act: Death penalty for rape

Context:

The Maharashtra Assembly  passed the Shakti Criminal Laws (Maharashtra Amendment) Act unanimously, with which it became the second state in India after Andhra Pradesh to approve death penalty for heinous offences of rape and gangrape.

Relevance:

GS-II: Social Justice and Governance (Issues Related to women, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies), GS-II: Polity and Governance (Important Judgements)

Dimensions of the Article:

1. About Shakti Criminal Laws (Maharashtra Amendment) Act
2. Criticism of the changes
3. Status of women safety in India
4. Laws for women against sexual crimes
5. Capital Punishment in India

About Shakti Criminal Laws (Maharashtra Amendment) Act

1. The Shakti Criminal Laws (Maharashtra Amendment) Act has amended the existing criminal laws to include death penalty as punishment in cases of rape and gangrape “in cases which have the characteristic of offence is heinous in nature and where adequate conclusive evidence is there and the circumstances warrant exemplary punishment, with death”. (The existing law on rape had provisions for death penalty only in cases of repeated offences.)
2. The Act has also enhanced fines and punishment for offences of sexual violence against women and minors.
3. Under the POCSO Act too, punishment for penetrative sexual assault in heinous cases has been enhanced to death penalty.
4. The Act requires the trial in these cases to be conducted on a day-to-day basis and completed within 30 working days from the date of filing of the chargesheet. It also requires for the investigation to be completed within a month of the FIR.
5. In cases of grievous hurt caused due to acid attacks under Section 326A, the punishment has been enhanced to a minimum of 15 years which can be extended to the remainder of the natural life of the perpetrator along with fine.
6. In cases of voluntarily throwing acid or attempting to throw it, punishment under section 326B has been enhanced to a minimum of seven years and a maximum of ten years.
7. The Act has provided a separate provision under the law for sexual harassment. Section 354E has been inserted to the IPC for intimidation of women by any mode of communication, in addition to insulting modesty.
8. The Act has also made it mandatory for social media platforms, mobile data companies to share data sought for the purposes of investigation in cases of rape, sexual harassment, acid attacks and relevant provisions under the POCSO Act.
9. The Act has also included a provision for punishment for any person “who makes false complaint or provides false information against any person solely with the intention to humiliate, extort, threaten, defame or harass” in cases of rape, sexual harassment and acid attacks.

Criticism of the changes

• It is suggested that enhancement of punishment to death penalty can be counter-productive.
• It is said that in many cases where the perpetrators are family members or known to the victims including children, it would be difficult to find support to approach authorities leading to unreported cases.
• It is important to note that that it may endanger lives of victims since punishment for murder and rape could both attract a death penalty.
• Retired Bombay High Court judge Justice B G Kolse-Patil called the Shakti Act ‘draconian’, stating that the law can be misused to settle political scores.

Status of women safety in India

• Women safety involves various dimensions such as Sexual harassment at workplace, rape, marital rape, dowry, acid attack etc.
• The United Nation’s ‘Safe Cities and Safe Public Spaces’ programme, which started in 2010, recognized that cities all around the world were becoming unsafe for women.
• The latest NCRB data for the year 2016 shows that Overall crimes against women have risen by just about 3%, whereas incidents of rape have gone up by 12%.
• Majority of cases categorized as crimes against women were reported under ‘Cruelty by husband or his relatives’ (32.6%). This draws a bleak picture of women safety in private places or home.

Laws for women against sexual crimes

• Section 354 of the IPC criminalises any act by a person that assaults or uses criminal force against a woman with the intention or knowledge that it will outrage her modesty. Such an act is punishable with either simple or rigorous imprisonment.
• Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will or without her consent. Her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt is considered to be Rape. Sex with or without her consent, when she is under 18 years is considered rape.
• Section 114A in the Indian Evidence Act of 1872 presumes that there is absence of consent in certain prosecutions of rape if the victim says so. This applied to custodial rape cases.
• Section 228A makes it punishable to disclose the identity of the victim in Rape case.
• The Protection of Children from Sexual Offences (POCSO) Act, 2012: Enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: To ensure women’s safety at workplace, this Act seeks to protect them from sexual harassment at their place of work. 36 % of Indian companies and 25% among MNC’s are not complaint with the Sexual Harassment Act according to a FICCI report.
• Indecent Representation of Women (Prohibition) Act, 1986: prohibits indecent representation of women through advertisements.
• Protection of Women from Domestic Violence Act, 2005: enacted to protect women from domestic violence – including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse.

Capital Punishment in India

• Prior to the Criminal Procedure (Amendment) Act (Cr PC) of 1955, the death penalty was the rule and life imprisonment an exception in India. Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
• After the amendment of 1955 courts were at liberty to grant either death or life imprisonment. As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35th report 1967.
• The Indian Penal Code prescribes ‘death’ for offences such as
  • Waging war against the Government of India. (Sec. 121);
  • Abetting mutiny actually committed (Sec. 132);
  • Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
  • Murder (Sec. 302);
• Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.

-Source: Indian Express