Legal challenge

THE Maharashtra Ordinance No.XIV of 2013, titled the “Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Ordinance”, promulgated on August 24, aims to bring about social awakening and create a safe social environment with a view to protecting people against the evil and sinister practices thriving on ignorance. Its another stated aim is to combat and eradicate human sacrifice and other inhuman, evil, sinister and Aghori practices propitiating supernatural powers or warding off evil spirits, commonly known as black magic, by conmen with the sinister motive of exploiting common people.

The ordinance is modelled on a still-pending Bill introduced in the State Assembly in 2011. The Maharashtra Assembly was the first to pass such a legislation in 2005, but the Bill lapsed because it could not get the approval of the State Legislative Council. The ordinance owes a lot to the rationalist Narendra Dabholkar, who was shot dead by unknown assailants in Pune on August 20. Dabholkar was instrumental in the drafting of both the Bills. The government justified the ordinance route to the legislation by citing the alarming number of instances of exploitation of common people by conmen with human sacrifice and other inhuman, evil and Aghori practices. A further justification of the government for going in for the ordinance was that the two Houses of the State legislature were currently not in session to pass a Bill immediately.

Crime and punishment The ordinance makes a significant contribution to defining human sacrifice and other inhuman, evil and Aghori practices and black magic, by describing these in as many as 12 paragraphs appended to it as a schedule. The schedule thus appears exhaustive in its coverage of all such practices.

The very first paragraph of the schedule, for example, illustrates the inhuman practices that the ordinance aims to curb: “Under the pretext of expelling the ghost, assaulting by tying a person with rope or chain, beating by stick or whip, to make the person drink footwear-soaked water, giving chilli smoke, hanging a person to roof, fixing him with rope or by hair or plucking his hair, causing pain by way of touching heated object to organs or body of a person, forcing a person to perform sexual act in the open, practising inhuman acts, putting urine or human excreta forcibly in the mouth of a person or practising any such acts.”

The subsequent paragraphs lay bare practices that have found a home in a progressive State such as Maharashtra. Sample these: “Prohibiting and preventing a person from taking medical treatment in case of dog, snake or scorpion bite and instead giving him treatment like mantra-tantra , ganda-dora or such other things”; “claiming to perform surgery by fingers, or claiming to change the sex of a foetus in womb of a woman”; “to keep sexual relations with a woman who is unable to conceive, assuring her of motherhood through supernatural power”; and “to create an impression that a mentally retarded person as having supernatural powers and utilising such person for business or occupation”.

Another paragraph details the kind of offence that the preacher Asaram Bapu is alleged to have committed: “To create an impression that special supernatural powers are present in himself, incarnation of another person or holy spirit or that the devotee was his wife, husband or paramour in the past birth, thereby indulging into sexual activity with such person.”

Clause 3(2) prescribes that the person guilty of violation of the provisions of the ordinance shall be punished with imprisonment for a term not less than six months but which may extend to seven years and with fine, ranging between Rs.5,000 and Rs.50,000. The ordinance prescribes similar punishment for those abetting the commission of the offence and makes it clear that the offence under it is cognisable and nonbailable.

Rather than the deterrence effect, it is the preventive aspect of the ordinance that gives hope to those aiming at social reform. Under Clause 5, the State government is expected to appoint in any one or more police stations one or more police officers, to be known as Vigilance Officer, who shall not be below the rank of an Inspector of Police, Group ‘B’.

The Vigilance Officer is entrusted with the duty to detect and prevent the contravention or violation of the provisions of the ordinance, and the rules made under it. He has to ensure due and speedy action, upon filing of complaint by any victim or any other person on the victim’s behalf, and to give necessary advice, guidance and help to the police station concerned. He also has the responsibility to collect evidence for the effective prosecution of persons contravening the ordinance.

Clause 5(3) seeks to punish anyone obstructing the discharge of official duties of the Vigilance Officer with imprisonment for a term which may extend to three months or with fine, which may extend to Rs.5,000, or with both. Considering that there may be enormous pressures on the Vigilance Officer not to perform his duty, the punishment under this provision appears rather mild, and deserves to be enhanced to match the punishment prescribed for the main offence.

That the Vigilance Officer has wide powers to search and seize materials in connection with the suspected offence under the ordinance could make obscurantist forces extremely wary of the manner in which the ordinance may be enforced.

Clause 10 of the ordinance makes it mandatory for the court convicting an offender under it to publicise the name and address of the convict along with the details of the conviction in the local newspaper. The aim of this provision appears to be to spread awareness among the people that such practices constituted an offence under the ordinance and might invite stringent punishment, so that they are discouraged from believing in them or in their perpetrators.

On September 5, two persons hawking a miracle remedy for diseases such as cancer and AIDS were arrested under the ordinance in the State’s Nanded district. The successful prosecution of the two, and similar accused in future, under this ordinance (which has to be replaced by an Act, to be passed by the Legislature) will demonstrate the effectiveness of the legislation to achieve social reform.

Weak Central legislation The only Central legislation on the subject is the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMRA). The aim of this Act is to control the advertisement of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies claiming to possess magical qualities.

The Act defines magic remedy as a talisman, mantra, kavacha , and any other charm of any kind which is claimed to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals.

The Act also prohibits publication of any advertisement promoting a drug for the procurement of miscarriage in women or the prevention of conception in women; the maintenance or improvement of the capacity of a human being for sexual pleasure; and the correction of menstrual disorders in women.

Compared with the ordinance, however, the punishment prescribed for an offender under the DMRA is very mild. Under the latter, in the case of first conviction, a court can sentence an accused with imprisonment, which may extend to six months, or with fine, or with both. In the case of subsequent convictions, the maximum term of imprisonment may extend to one year or with fine or with both.

Experts have pointed to serious deficiencies in this Act. One is that the Act does not provide for an enforcement mechanism to monitor the implementation of the law. The second is that the Act does not provide for the issue of an advertisement to correct the false and misleading notions spread by the advertisement of magic remedies for certain diseases. The Act is also considered ineffective in dealing with advertisements on television and the Internet. There are no reliable data in the public domain as to the number of prosecutions and convictions under the Act. Section 9A of the Act, inserted in 1963, makes an offence punishable under it cognisable, that is, the police can initiate investigation and arrest an accused without a court warrant. Yet, the Act is rarely invoked against suspects against whom there is prima facie evidence.

In a case in the Delhi High Court recently, a social activist sought the court’s direction to the authorities to take action under the Act against Nirmal Baba, a tantric in Delhi, who claimed through the electronic and print media that he had magical powers to cure diseases. However, the Government of the National Capital Territory of Delhi told the court that the Act could not be invoked against him because Nirmal Baba did not claim to cure any specific diseases as mentioned in the Act. Although the Schedule to the Act lists 54 diseases with respect to which misleading advertisements to cure them by unregistered medical practitioners are prohibited, godmen such as Nirmal Baba circumvent the Act by claiming that they have cures for all diseases, without specifically mentioning any of the diseases in the Schedule. The court disposed of the petition, accepting the plea of the Delhi government that it would examine whether there was a case for invoking Section 9A of the Act against Nirmal Baba.

Anti-witchcraft legislation A few States are grappling with the issue of finding the correct legal strategy to combat the superstition-based social menace called witchcraft and their success may be a pointer to whether laws can achieve social reform. According to observers, witchcraft has claimed dozens of lives over a decade.

The obnoxious practice has another side, too, called witch-hunt, where a woman is branded a witch who can spread disease and death. The woman is subjected to brutal physical violence. A report released by Partners for Law and Development, a non-governmental organisation, in January this year noted the widespread prevalence of the practice in Bihar, Jharkhand, Odisha, Chhattisgarh and Assam.

At present only three States have specific laws against witch-hunt: Bihar, Jharkhand, and Chhattisgarh. Odisha is in the process of finalising legislation against witchcraft.

Activists say the Prevention of Witch (Dayan) Practices Act, 1999, in Bihar, the Anti-Witchcraft Act, 2001, in Jharkhand, and the Witchcraft Atrocities (Prevention) Act, 2005, in Chhattisgarh are not being implemented effectively.

Aparna Dwivedi, a social activist who studied the laws on witch-hunt as part of the Women’s Justice Team of Human Rights Law Network, highlighted some of the serious lacunae in the existing laws: “There is a provision in the laws where there are penalties for a woman if she propagates herself as a witch. This only works against the victims. Reporting of cases is very difficult, as most of the women are tortured brutally and unable to reach the police station. As part of a fact-finding team in seven districts of Jharkhand, we found that women branded as witches were not able to access the justice system. Also, the laws do not have any mandatory provisions for the government to provide relief to the tortured women. There is no protection in the form of legal or monetary support offered by the laws to women who are complaining. Often a woman who lodges a complaint has to stand up against the community.”

According to her, a piece of all-India legislation will make implementation and enforcement of laws easier. A monitoring committee constituted by a national body, such as the National Commission for Women, can ensure more effective implementation of laws at the State level, she says.

In 2010, Avdhash Kaushal of the Rural Litigation and Entitlement Kendra, Dehradun, filed a petition in the Supreme Court seeking a writ of mandamus to be issued to the States of Jharkhand, Chhattisgarh and Bihar to implement their respective anti-witchcraft legislation in letter and spirit. The petition also requested that the States of Assam and Odisha be directed to enact an anti-witchcraft law. It also demanded that the Union Ministry of Women and Child Development create a fund and a social scheme to treat victims of witchcraft and ensure their rehabilitation. The court dismissed the petition in March 2010 on the grounds that it was a State-specific matter and the petitioners should approach the High Courts.

Madhu Mehra, executive director of Partners for Law in Development, argued: “To frame the practice of witch-hunt only in terms of superstition misses the larger issues of the lack of governance, a sound public health care system and education. A lot of murders of the so-called witches happen because of land disputes. It is a form of gender-based discrimination against women who upset social hierarchies of gender, caste, amongst other things. In many of the cases documented by us, we have found that marking women as witches is used as a method of social control, to put the woman, or indeed her entire family ‘in their place’ so as to restore this status quo.” She, therefore, feels that rather than enacting pan-Indian legislation which will strengthen the State’s punitive power, the State’s response to witch-hunt must involve restorative justice for the victims, with components of food security, protection, housing and livelihood guarantee.

According to Sashiprava Bindhani, a public interest litigant who sought the Odisha High Court’s intervention to secure a draft State law against witch-hunt, most of the violence is targeted at single women, widows or couples without children. “Mostly tribal people and women of socially backward communities are branded as witches. It feeds on different forms of marginalisation where people are deprived of health, education and livelihoods by the State,” she said.

The draft Rajasthan Women (Prevention and Protection from Atrocities) Bill, 2011, seeks to address the problem of women being harassed and sometimes even killed after being branded as witches. It aims to punish persons found guilty of branding a woman a witch and using criminal force against her with varying sentences of imprisonment and fine.

The Bill also has a provision to punish anyone claiming to possess spiritual and/or magical powers, and who declares any woman as a “possessed one” and performs any ritual to free the woman from the evil spirit or entices a woman or any person on her behalf with a promise to bless the woman with a child or performs any ritual on behalf of any person with the intention to harm the woman.

The delay in enacting this Bill means a missed opportunity to prosecute godmen such as Asaram Bapu with a special and stringent law.