This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the Maharashtra cabinet’s view on death penalty.
This article has been published by Sneha Mahawar.
Table of Contents
While showing their support for the death penalty reserved by the Bombay High Court to Kolhapur sisters, Reuka Shinde and Seema Gavit, who abducted and killed children between 1990 to 1996, the Maharashtra government reflected their vision concerning death penalty which resulted in bringing about an amendment of the existing Shakti Act, 2020. The Shakti Criminal Laws (Maharashtra Amendment) Bill, 2021 brings in a plethora of changes which has been highlighted in this article. The article also aims to draw the readers’ view on Maharashtra cabinet’s perception surrounding death penalty and th possible outcome of such viewpoint.
Maharashtra cabinet on death penalty
In an effort to reduce horrific crimes against women and children in Maharashtra, the state cabinet adopted a draft Bill, for making changes to existing Shakti Act, 2020, that includes provisions for harsh punishment for criminals, including death penalty, life imprisonment, and substantial fines, as well as expedited trials. For the proposed law’s implementation in the state, the draft Bill aims to change pertinent provisions of the Indian Penal Code (IPC), 1860, Criminal Procedure Code (CrPC), 1973, and the Protection of Children from Sexual Offenses (POCSO) Act, 2012. The state had stated in December 2019 that it will introduce a law similar to Andhra Pradesh’s Disha Act, 2019. The Shakti Criminal Laws (Maharashtra Amendment) Act was overwhelmingly enacted by the Maharashtra Assembly on December 2, 2021. After Andhra Pradesh, it became the second state in India to accept the death sentence for egregious rape and gangrape offences with the approval of the Bill.
The government cited a spike in the number of incidents of violence, particularly sexual assault against women and children, as the primary motivation for enacting the new legislation. According to the Bill’s Statement of Objects and Reasons, it is necessary to complete the investigation and trial of heinous sexual offences against women and children in a timely manner in order to deter perpetrators from committing such crimes. It is necessary to impose severe penalties, such as large fines and death sentences.
Shakti Criminal Laws (Maharashtra Amendment) Act, 2021
The Shakti Criminal Laws (Maharashtra Amendment) Act, 2021 which still remains a Bill, have been analysed hereunder from different viewpoints. The showstopper in this analysis is the positive advocacy concerning death penalty that the present legislation voices for. That remains the sole reason as to why the Maharashtra cabinet’s take on this reformative legislation has been much in discussion.
Changes in existing laws
Changes to the Indian Penal Code, 1860 the Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offenses Act, 2012 are proposed in the draft Bill. Changes to current provisions on rape, sexual harassment, acid attack, and child sexual abuse are proposed.
The Bill recommends that Section 375 of the IPC, which lays down the offence of rape, be amended to provide an explanation. In situations where rape is committed under circumstances that include, but are not limited to, some form of assurance, such as a promise of marriage or understanding between the parties, where they are consenting adults, and from conduct it appears that act has been committed with the consent or ‘implied consent,’ valid consent may be presumed. In such instances, the present legislation does not imply a blanket assumption of permission. Under Section 326A, the punishment for serious bodily harm caused by acid attacks has been increased to a minimum of 15 years, which can be extended to the perpetrator’s natural life, plus a fine. The penalty for willfully throwing acid or trying to hurl it has been increased to a minimum of seven years and a maximum of 10 years under Section 326B.
The Bill proposes changes to the CrPC, requiring that an investigation in certain instances be completed within 15 days after the filing of an FIR, with a seven-day extension possible. If it is not completed within this period, the investigating officer must provide a written report to the commissioner of police or special inspector general explaining the reasons. A trial must also be finished within 30 days of the charge sheet being filed against an accused, according to the Bill. It is intended that an appeal filed with a higher court be resolved within 45 days. The Bill proposes that exclusive courts be established for this purpose.
While the POCSO Act, 2012 has provisions for quick case disposition and the establishment of special courts, the disproportionate ratio between cases filed and available infrastructure, notably in forensics and the judiciary, results in increased pendency. The Bill highlights the same as well.
Loyal advocates of the death penalty
The Bill proposes death sentence for rape, gang rape, rape by individuals in power, severe sexual assault of children, and acid attacks that result in serious harm. The death penalty is to be advocated “in terrible situations where sufficient solid evidence is available and circumstances necessitate exemplary punishment.”
According to the draft Bill, special police teams and specialized courts would be established to investigate and prosecute incidents involving women and children. The Bill also recommends that anyone found guilty of the aforementioned offences face a severe punishment of up to Rs 10 lakh. The old legislation provided for a fine, although most parts did not specify the amount. In cases of acid attacks resulting in serious harm, a fine of up to Rs 10 lakh is suggested to be paid to the sufferer for medical care, including plastic surgery and reconstruction. In serious incidents of sexual violence, the Bill proposes to increase the sentence from five to seven years in some areas of the present legislation, and from seven to 10 years in others.
The Bill also proposes the creation of a “Women and Children Offenders Registry” that would be linked to the National Registry of Sexual Offenders and will provide law enforcement authorities with information on anyone convicted of sexual assault against women and children. Each district will also have its own police unit to investigate similar instances. According to the bill, the government would establish institutions such as the “One Stop Centre” to provide victims with rehabilitation, legal assistance, counseling, and medical assistance. Many of these have already been suggested in the state under various programs such as the Manodhairya scheme.
A lookout for crimes in digital space
The draft Bill suggests enacting new legislation to address online harassment of women. Intentionally inducing “a feeling of danger, intimidation, or dread in a woman,” as well as insulting her modesty by any act, deed, or words, including offensive communication, will be an offence punishable with up to two years in prison and a Rs 1 lakh fine. The offence is inclusive of uploading modified videos of women or threatening to upload images or films that might cause libel, embarrassment, or breach their privacy. The Bill also makes it essential for internet, telephone, and social media companies to submit electronic records and data for investigations in incidents of sexual abuse against women and children within seven days, or if otherwise, face a fine of up to Rs 5 lakh and a one-month jail sentence.
Death penalty : a solution or hurdle
The issue of deterrence has always been a central subject in death penalty debates. The debate centers on whether or not the death sentence has the ability to deter future heinous crimes. Most states are used to enacting rules to deter potential criminals from conducting illegal acts. The fact that governments implement such a statute in situations of heinous crimes demonstrates that the state is committed to eliminating the same, and hence is adopting the most severe punishment available to deter them, which is the death penalty. The argument here is that if a rapist is sentenced to death, those who wish to do the same act would think twice before killing since they don’t want to lose their lives.
When it comes to delicate matters like the death sentence, policymakers have a propensity to ignore the primary point. What policy should be adopted is determined by how an issue is characterized. If the death sentence is characterized as a human rights issue at the problem description phase, most of the arguments (such as cost and deterrent) will be overlooked. The argument that the death sentence should be used to punish criminals for murder is incredibly naive. If states don’t favor losing people, then the death sentence should not be used as a punishment for heinous crimes like rape. As a result, academics across the world continue to explore alternatives to the death sentence for such crimes.
Loopholes in the proposed Bill
- Age is a crucial aspect to consider while sentencing and the Supreme Court had viewed in Bachan Singh v. State of Punjab (1980) that “whether an accused is young or elderly, he shall not be condemned to death.” The argument is that young people have their entire life ahead of them, and the criminal justice system in such situations tends to favor reform. It is also considered that young people are highly vulnerable in society, and that punishing them in the same way as older individuals would be excessive. Furthermore, elderly people cannot be regarded as a significant threat to society, thus capital punishment is not justified on the ‘crime prevention’ or ‘incapacitation’ theories of punishment. The Bill does not provide any age limit for granting the death penalty and therefore leaves it for the courts to interpret.
- The Bill does not consider the factor of economic vulnerability while imposing robust deterrents including the death penalty for the offences embraced by it. As the cases of the detainees progressed through the court hierarchy, the difficulties imposed by the criminal justice system would further heighten the prisoner’s economic vulnerability.
- The quality of legal representation given to death row inmates is an essential criterion for assessing the fairness of India’s death penalty administration. Given the socio-economic character of death row inmates, attorneys must play a critical role in addressing the alienation that these individuals feel from the criminal justice system. However, there has been an increase in the lack of engagement with inmates and their families, as well as frequent demands for money and defence lawyer failure of duty. The Bill fails to highlight this aspect while clearly laying down the death penalty as a deterrence measure for heinous offences.
- There is very little information available about the treatment of death row inmates in Indian jails. One of the most noticeable elements is that inmates sentenced to death are handled differently from the time the trial court issues the death sentence, despite the fact that the law clearly states that all death judgments issued by trial courts must be confirmed by the High Court. In prisons, this disparity in treatment has very serious effects on the prisoner, such as the inability to work, lack of engagement with the general jail population, and ban from engaging in prison activities, among other things. The Bill’s silence in this aspect is not very welcoming.
- While the Bill very well states the need for speedy trials in heinous offences committed against women and children, it fails to base its utopian thought of promoting the death penalty as a means to end the commission of such grave offences with realism. There exists no such statistics or evidence that can showcase the fact that the promotion of the death penalty as a foremost measure of punishment has contributed to reducing the rate of commission of inhuman offences against women and children in the nation. Instead, the Bill will take the shape of a toothless tiger as soon as it wears codified clothes (becomes an Act).
While Maharashtra became the second state after Andhra Pradesh to bring in changes in the existing statutory laws to govern rape cases stringently, the reason as to why the remaining 25 states of India have not adopted such robust laws draws attention. Maharashtra cabinet’s decision to promote the death penalty as a stringent deterrent to curb rape cases in the state is indeed socially awakening but must be implemented cautiously and with necessary precautions so as to avoid the legislation from taking a draconian shape.
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