As Maharashtra govt pushes for stricter rape law, a look at constitutionality and legality of Shakti Bill

The Maharashtra government introduced the Shakti Bill in the state Legislative Assembly in December 2020 to curb sexual offences committed against women and children. The Bill proposes amendments to existing laws on crimes against women and children and provides for stricter punishment, including death penalty, for offences such as rape and gang rape. It also reduces the time for completion of investigation and trial for crimes against women while also adding punishment for false complaints, among other things.

The Shakti Bill is similar to the Disha Bill passed by the Government of Andhra Pradesh in 2019 to provide enhanced punishment (including death penalty) for crimes against women.

In 2013, post the Delhi gangrape case, the Parliament passed a law to allow for death penalty in rape cases where the accompanying brutality leads to death, and in cases of repeat offenders. Further, in 2018, the Parliament passed a law allowing death penalty for rape and gangrape of girls below the age of 12 years.

The Shakti Bill has been referred to a joint select committee of MLAs and MLCs for review. In this article, we discuss the key changes proposed by the Bill, and some issues to consider.

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.

However, it must be noted that despite the existence of a timeline for investigation (two months) and trial (two months), 44 percent of crimes against women are pending investigation, and 94 percent pending trial in Maharashtra.

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.

As of 2019, the national police-population ratio was 195 policemen per lakh population (less than the ratio of 222 recommended by the United Nations), and district and subordinate courts across India had 22 percent vacancy for judges.

Punishment for filing a false complaint may act as a deterrent

The Bill penalises filing of a false complaint for offences committed against women and children such as acid-related crimes, and rape. It is punishable with imprisonment for up to one year, or with fine, or both. This may deter people from reporting such crimes in a situation where such crimes are already severely under-reported.

Further, punishment for the offence of making false complaints and providing false information already exists under the Indian Penal Code, 1860, and the Protection of Children from Sexual Offences Act, 2012.

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.

Note that the Information Technology Act (IT Act), 2000, already requires sharing of data with authorised persons for investigation of any offence. Under the IT Act, an authorised person can request access to information by order (and for reasons recorded in writing).

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.

The Supreme Court (in the Puttaswamy judgement) has held that individuals have a fundamental right to privacy, subject to reasonable restrictions. Any restraints on privacy must be: (i) in accordance with the procedure established by law, (ii) in pursuit of a legitimate state need, and (iii) proportional to the aim. The restrictions imposed by the Bill on the right to privacy may be disproportionate and arbitrarily applied, and therefore, fail to meet the requirements specified by the Court.

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.

The authors are analysts in the research team at PRS Legislative Research