Maharashtra’s New Act on Sexual Violence: A Misdirected Legislation

A proposed bill in Maharashtra which aims to bring in changes in the existing criminal laws including the POSCO Act, 2012, has been tabled in the assembly without due consultation with stakeholders or survivors of sexual violence. Nor was it put in the public domain for comments and critiques, say SANGEETA REGE AND SANJIDA ARORA.

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It has been seven long years since 16th December 2020, since the brutal physical and sexual assault on Nirbhaya in India's capital. Nationwide agitations compelled the Indian government to bring about reforms in rape laws as well and forced law enforcement agencies to respond.

According to the National Crime Records Bureau, the conviction rate in rape cases is merely 27%. It is in this light that the Maharashtra Government recently tabled two bills related to this new law in the assembly to address an increase in the number of cases of sexual violence against women and children. 

The proposed bill, Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, seeks to bring changes in existing criminal laws including the POCSO Act, 2012. Further, the bill on Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020, proposes the setting up of special police teams, courts and machinery at the level of districts to ensure speedy trials. 

Under this law, one of the most regressive amendments which is proposed is the addition of Explanation 3 to section 375 which mentions that if parties are adults and it is evident from circumstances that there was consent or implied consent, a presumption of consent should be made. 

BLOW TO LEGAL AMENDMENTS

This is a serious blow to the legal amendments brought by the Justice Verma Committee seven years ago which clearly stated that consent is an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in a specific sexual act. 

The proposed amendment will shift the burden to the woman to prove the absence of informed consent. Often, the act of sexual violence is planned with practically no eyewitnesses. The reliance on conduct and circumstances to presume the consent of woman will put the onus on the woman. It will contravene several past judgements where the court has stated that the woman's testimony is enough as evidence for the conviction of the accused.