Suggestions on proposed Shakti Bill, 2020 (Based on report on survey cum invitation of suggestions conducted by Vaastav Foundation) By Dr. Mithun G Kherde

by Mithun · January 16, 2021

Introduction: “Laws are like double-edged weapons. If they are made to protect the rights of a person, they can also be misused to throttle the liberty of opponents,” the Delhi Court had observed, while acquitting the man of rape charges in a case in 2008. Therefore, to PREVENT POTENTIAL MISUSE of SHAKTI Criminal Laws (Maharashtra Amendment) Act 2020, Vaastav Foundation had voluntarily taken up the task of inviting/ compiling suggestions on the proposed SHAKTI Bill. Vaastav Foundation is an NGO fighting for Men’s Rights, Dignity and Honor. Vaastav Foundation has its registered office in Mumbai City. Vaastav Foundation feels compassionate about every socio-economic and legal issue that concerns humans in general and boys and men citizens in particular. Vaastav Foundation believes in the philosophy of MEN’S RIGHTS ARE HUMAN RIGHTS and reiterates that, for peaceful existence of humanity in India, it is high time to recognize and amend existing laws effectively from the perspectives of human rights, dignity and honor of #MenToo.

Context and Background: On a daily basis we come across several cases through the media – print and electronic which point out towards the stark reality of various laws being misused and the process of law being abused. The National Crimes Record Bureau (NCRB) 2019 data on sexual offences against women suggest a low conviction rate (merely 27.8% in rape cases) is a clear indication of gross abuse of process of law meant for protection of women in India and a grave miscarriage of justice. Further, that NCRB data on suicide is an eye opener for the issues that Men are facing in India today. About 70.2% of Indians committing suicide are men. However, there is no discussion on Men’s issues. Over that, there is systemic exclusion and neglect towards rights, interests and needs of male citizens of the country from every aspect of citizenship be it Education Policies, Health Programs, Legislation recognizing rights, dignity and honor of Men citizens of the country. Instead, the overall impression is that ‘women centered’ politics, budget and policy preferences are overriding all the other important issues such as unemployment among the male citizens, school dropout rates of mae children, male suicides, alimony deaths (men dying due to patriarchal pressure of maintenance and alimony by suicides or being killed in jails or otherwise in matrimonial disputes) [1], groom burning [2], male health issues including sexual and reproductive health of men citizens. In continuation of the similar trends, just prior to the commencement of the winter session of the Maharashtra State Legislative Assembly, Hon. Cabinet Minister for Home Affairs in the Maharashtra state government had announced in the media regarding intention of the government to table a bill to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012, with an objective to reduce the crimes on women and children in line with the Disha Bill, 2019 passed by the Andhra Pradesh State Assembly. The draft of the proposed (SHAKTI) bill was tabled into the winter session of the assembly without placing into public domain, without any thoughtful consultation and only few of its contents were released in public via various media houses. Hence it met wide criticism from several human rights activists, NGOs, academicians and lawyers, etc. for being draconian in nature and futile in furthering the peaceful human existence. Vaastav Foundation organised a mass SMS, twitter and Facebook campaign opposing the contents of the bill and asserted to have detailed discussions over it. Finally bowing down to the public demand a committee was formed for scrutiny of the proposed bill and the draft of the proposed bill was made public. On 02.01.2020 a notification was displayed on the official website [3] of the Maharashtra Legislature inviting suggestions on the proposed SHAKTI Bill, 2020.

Methodology: Vaastav Foundation conducted an online survey on the proposed bill and has prepared a report on the basis of the survey response received from 436 individuals. The survey was prepared in the form of google form. It contained 15 close ended questions and at the end of the survey, one open-ended question was given for people to submit their suggestions on the bill. Thereby the report comprises the responses received on 16 crucial questions concerning the SHAKTI Bill. However, the report is not entirely based on the survey alone, but also involves thorough literature search clubbed with overall experiences of the members of Vaastav Foundation who work closely with the victims of false cases and their families consisting of both male and female members.

Summary of findings and suggestions:

Fault-lines with Statement of Objects and reasons – No evidence/ data is quoted on what is taken as “increase in offences!” Whether it is a mere increase in alleged incidents? Is this supported by the rise in conviction rates as well? The acquittal rate in these cases also needs to be studied with judicious application of mind. Also the increase (if any) needs to be studied in terms of types of cases – allegations arising out of breakup in consensual relationships, false promise of marriage, committed for number of year/ months with unexplained delay in reporting; allegations on close relatives arising out of family discord, failure of marriage, matrimonial dispute; etc. Legislators proposing the bill seem to be well aware of the fact that there have been changes in laws and in a way acknowledge that ‘changes in law’ have not yielded fruitful results. Legislators did not seem to have cared to think if enhancement of the punishment was the right thing to do, even though the punishment for rape and other related offences were enhanced twice recently in 2013 and 2018. Further, laying down too much emphasis on ‘death penalty’ which is to be discarded/ done away with in toto or to be cautiously used in rarest of rare cases, is a sign of a regressive mentality and ends the hopes in chance of correctional justice. It endangers the life of victim in such offences where the punishent for such offences and murder being the same. Therefore, amending the laws on the same lines (increasing the quantum of punishment again and again) need to be questioned applying theories of criminal-jurisprudence in the light of the correctional justice system.

False complaint deserves equal punishment: Chapter II, Para numbered as 4 in the proposed draft bill proposes for Insertion of section 182A in 45 of 1860. Even though here, the Legislators have rightly proposed the first part of the insertion suggesting the punishment for the false complainant and the false witness solely with the intention to humiliate, extort, threaten, defame or harass the quantum of punishment proposed is too less. As cautioned by various courts and observing the growing menace of false accusation for various ulterior motives, it is necessary to insert the clause for punishment in quantum equal to that proposed for the accused if proven guilty. A provision of minimum prosecution of a false accuser with rigorous jail term for 7 years and a monetary fine of Rs. 5,00,000/- is to be inserted. Further, the false accuser also needs to be charged with related sections under IPC/ CrPC for wasting valuable time and resources of the public servants – police and judiciary and additional penalty to be imposed to compensate for the loss of exchequer’s resources if the prosecution fails to prove the case.

Clumsy drafting/ loosely worded legislation – Chapter II, Para numbered as 4 in the proposed draft bill proposes for Insertion of section 354E in 45 of 1860: Intimidating woman by any mode of communication, in addition to insulting her modesty. The Legislation needs to be air tight and shall have no scope for loopholes. Whereas the proposed bill is vaguely drafted and hence is prone to misuse. The clumsy introduction new category of offences by including loosely defined phrases such as ‘sense of danger’, ‘fear to a woman’, ‘insulting her modesty’, ‘by any act, deed or words’, ‘offensive communication’, ‘lascivious’ or ‘lewd’, ‘defame or cause disrepute’, ‘use of that woman’s name’, ‘particulars’, ‘photographs’ or ‘any other means of identification’, ‘directly or indirectly’, ‘outrage her modesty’, ‘violate her privacy’ shall open up a new floodgate of false cases and tremendous burden on the investigation agencies and judiciary.

Killing the scope for Freedom of Speech for Men – The linguistic & cultural diversity in India is huge and hence what may be ‘lascivious’ or ‘lewd’, ‘offensive’ or ‘outrageous’ to one may not be offensive to others. So any word, deed or act by men can be portrayed in any matter one may interpretes and would be subject to punishment under the proposed section. This would seriously hinder the constitutional right of “Freedom of Speech & expression” of a man. The said section 354E is therefore an obstacle to realisation of the sense of liberty and against the judicial principle of Natural Justice. Use of social media to interact with each other is a new and revolutionary change the modern time is seeing. Mutual exchange of thoughts, expression and arguments turning into serious offences will have detrimental effects. Therefore the insertion should be discarded in toto.

Investigation in haste is investigation gone waste – Chapter III proposes amendments to CrPC, 1973. The proposed sections 173 and 309 of CrPC arbitrarily sets a time frame for completion of investigation and trial. Looking at the available infrastructure, technical and technological issues, training deficiencies, history of the Police Investigation, burden of pending cases & the Judicial process, the time frame given to complete the investigation within 15 days and the trial within 30 days is very less and therefore it will force Police & judiciary to give verdict in haste. Arbitrary time frame – Failure in filing a timely charge sheet in heinous crimes is a major reason for concern and the situation will worsen further as the department would have to complete the investigation within the stipulated time frame which is too short by any standards. Therefore, the proposed time frame needs to be revisited with a judicious application of mind.

Acid attack needs to be recognised as Gender Neutral Offence: Section 326A and 326B of the proposed bill needs to have gender neutral provisions as there have been several cases of attack on men by women and other men too.

Need to protect the identity of the accused – The over-sensitivity and sensationalization of the crime against women and children has led to several incidences of Ghost Hunting and Media Trials. With majority of cases resulting into acquittal (70% rape cases), it has been observed by various courts in India that there is no mechanism to restore the lost dignity and honor of men accused in such cases. The men accused cannot ‘walk free’ even after acquittal due to the social stigma. Thus, it is utmost important to protect the identity of the accused. Also there is an urgent need to sensitize the media, investigating agencies and the judiciary towards rights, dignity and honor of men even if accused of sexual offence in confirmation with the Universal Human Rights principle of ‘innocent until proven guilty’.

No one discusses dignity and honor of men – This was an observation made by the Delhi High Court while acquitting a rape accused. Shakti Bill also fails to recognize the need for compensation and rehabilitation to victim of false rape case. Therefore, Shakti Bill is yet another act of disservice to the men citizens of the State of Maharashtra and India by its own elected representatives. False accusation not only affects a man’s life alone but also leaves long lasting physical, emotional, psychological, economical and social impacts on the women, children and elderly family members of the accused. Maharashtra state government and the Central government need to learn from an example set by the Manipur state government which announced compensatory and rehabilitation relief in the form of job and house for the man wrongly imprisoned in false rape case [4].

Time Barred complaints: The Limitation Act should have an overriding effect on the offences under SHAKTI ACT. Courts shall be barred from entertaining the complaints that crop up at a very long duration of the alleged incidence.

Definition of Rape and other Sexual offences– Rape Laws in India have become a subject of mockery worldwide. Maximum Rape cases registered in India fall under following head –

false pretext of marriage,
failure of consensual relationship,
girl’s parents forcing rape accusation against boy after their consensual elopement.
matrimonial disputes resulting into rape accusations against father in law, brother in law & other men in the family

No clear distinction between Actual Rape as and above mentioned circumstances leads to the gross misuse of Rape Laws in India.

Cases of Implied Consent: When the sexual acts are committed in the circumstances including but not limited to some form of assurance including promise of marriage or understanding between parties, where the parties to such acts are adults and from the conduct of such parties and from all circumstances surrounding the same, it appears that the act has been committed with consent was given, it should be considered to have been committed with implied consent and therefore should not be considered as punishable offence under the SHAKTI ACT.

Corruption & Evidence Tampering – Corruption is the biggest cause of failure of judiciary in India. Submitting False, Fabricated, Tainted evidence is a common precedence. Fast track Courts constituted by States haven’t yielded the desired results in the past. The tendency of instant justice leads to social sanction for police encounters and judicial killings as seen in Hyderabad alleged gang rape case & Vikas Dubey Encounter where alleged foul play by Police was the talk of the town.

Conflicting Views – On one hand the SHAKTI Bill portrays as if addressing the issue of ‘Justice delayed is justice denied’ and on the other, there is apprehension about ‘let a hundred guilty be acquitted, but one innocent should not be convicted’.

Role of Supporting Agencies – Huge responsibility of conducting & verifying crucial evidence will lie on the shoulders of agencies like forensic laboratories, but, timely delivery of such results will be a subject of question & chances of error will be very high if the tests are conducted in haste.

Indian Societal Thirst for instant justice is a danger to humanity – Death penalty points out towards a retrogressive mindset, while correctional justice should be the way forward and progressive.

Rising menace of False Rape – While issuing guidelines to Delhi State Legislative Services Authority (DSLSA)’s Victim Compensation Scheme, Hon’ble Delhi High Court Observed and Highlighted that “The court cannot allow the judicial process to be used for wrongful gain at the cost of the public exchequer. It is, thus, incumbent that the legal services authority – custodian and trustee of the victim compensation scheme and fund – puts in position sufficient safeguards vis-à-vis disbursement.” [5], [6], [7], [8]

Sexual offences in India need to be made gender neutral – The Criminal Law Amendment Bill, 2019 was introduced in the Rajya Sabha on the 12th July 2019 reiterates that, “the Constitution of India guarantees to all persons the right to life and personal liberty, the equal protection of laws and prohibits discrimination on the ground of sex [9]. It also suggested that the Law Commission of India vide its 172nd Report dated 13th March, 2000 after considering all aspects had recommended that sexual offences should be made gender neutral.

Conclusion: The SHAKTI BILL, 2020 is in Regressive Direction and therefore needs to be withdrawn with immediate effect. As concerned citizens of Progressive Indian Society, we the members of Vaastav Foundation, submit that, “instead of misplaced, loosely drafted & gender biased and discriminatory legislations like Shakti Act, progressive law reforms should acknowledge the need of Gender Neutral way of legislations & Judiciary where the dignity and honour of all humans be protected, guarded and upheld irrespective of gender.

See Detailed Survey Report in the annexure. – https://drive.google.com/file/d/1dt4Z9aN-gNvRlXHfofb288b1wjUdVY8p/view?usp=sharing

References:

1. IIT-Roorkee Alumnus Lists 32 Instances Of Groom Burning In India; Nearly Half Numbers In 2020

https://www.mensdayout.com/in-the-news/groom-burning-india/

2. Gujarat Husband Ends Life: “My Mother-in-Law Constantly Harassed Me For Alimony, Turned Me Into Servant”

https://www.mensdayout.com/in-the-news/husband-suicide-india-gujarat/

3. Maharashtra State Legislature http://mls.org.in/

4. Manipur Government To Provide Job, House To Man Wrongly Held In Rape & Murder Case

https://www.mensdayout.com/in-the-news/manipur-government-assures-job-house-to-man-wrongly-held-in-rape-and-murder-case/

5. Fake rape victims are misusing the compensation scheme in Delhi: High Court has issued guidelines to deal with the alarming situation

https://www.latestlaws.com/latest-news/misuse-of-compensation-scheme/

6. Read Order https://drive.google.com/file/d/1Dog9XRsiau1w2ztBG5qys0kZt-KSNBFH/view

7. Bombay High Court Fines Woman ₹ 25,000 For False Rape Complaint: Report https://www.ndtv.com/india-news/bombay-high-court-fines-woman-rs-25-000-for-false-rape-complaint-report-2285822

8. बलात्काराचा खोटा आरोप केल्याने महिलेवर एफआयआर