“Why do I have to wear toe rings?” a 5-year old Bulbbul asks her aunt. “There is a nerve there which if not pressed, girls fly away”, she answers. “Like a bird?” Bulbbul asks in amaze. “No, it’s to control you,” her aunt swiftly replies.
Bulbbul, a minor gets married to a much elder, wealthy ‘Bado Thakur’ who mutilates her feet on learning that she likes Satya, Thakur’s brother. On being bedridden, she is raped by Mahendra, Bado Thakur’s twin brother in her twenties. Mahendra is killed and the reason of his death is supposed to be a ‘witch attack’. Later, the villagers start believing that a witch attacks abusive husbands of the village. Observing these mysterious deaths in the area, it is revealed that Bulbbul is ‘the witch’ who has, by then, assumed the role to avenge the wrong done to her. The feminist fairytale ‘Bulbbul’ which captivated a large virtual audience showcases the stigmatized Indian society that appalls a lone woman who refuses to be bound by the chains of the society.
Witch hunting as essential religious practice
In India, religion is strictly a matter of faith and freedom to profess, propagate and practice religion is covered under Articles 25 and 26 of the Constitution of India. Yet, it becomes quintessential to analyze if a religious practice or belief is an ‘essential part of one’s respective religion’. According to Commissioner of Police v. Acharya Jagadishwarananda Avadhuta case, essential practice of religion is the core belief on which religion is founded. In Durgah Committee Ajmer v. Syyed Hussain Ali &Ors, it was held that any religious or secular practice which is sprouted only from superstitious beliefs is extraneous, unessential religious practice and is excluded from the protection of the Constitution of India
For instance, the Bodo community of Assam follows a deeply rooted traditional belief and considers magic and mantras to be a key ingredient of their rituals. They believe that the reason for a person falling sick or the harm befalling the community is an alleged witch and her evil acts. It is believed that remedy of any disease caused by such evil spirit or black magic can only be cured by a traditional medicine man (Ojha) who possesses the power of driving away this evil force. Since they believe that diseases caused by black magic can only be cured by counter-magic, the ojha identifies the ‘dayana’ and sacrifices or tortures her during the Kherai Puja, one of the biggest religious festivals of this Bodo community that follows Bethau religion. Consequentially, witch hunting cases are on the rise in the state of Assam owing to age-old and orthodox religious superstitious beliefs.
Such a practice is based on extraneous superstitious beliefs, violates right to life right to live with dignity and also affects health of that individual. Thus, such acts are not covered as an essential religious practice under article 25 of The Constitution of India.
Prevailing Witch hunting laws
Witch hunting is a gender-targeted discriminatory practice stemming mainly from ancient patriarchal setup to punish and murder the fierce and so called evil women. A woman who may, for instance, have psychological disorder or is raped or divorced, is subjected to unjust cruelty merely on superstitious beliefs of ‘god fearing people’ and is called names like ‘daayan/daain’, ‘chudail’ and ‘bhootni’. To curb these unlawful practices and deter this appalling crime, some state enacted laws where witch hunting is prevalent provide with the following penalties:
- Prevention of Witch (Daain) Practices Act, 1999in Bihar: Section 4 of this act provides that in case of any physical or mental torture inflicted on women identified as ‘daain’ either deliberately of otherwise shall be imprisoned for a term ranging from 3 months to 1 year and/or fine of Rs. 1000-2000.
- Jharkhand Prevention of Witch (Daain) Practices Act,2001: The punishment for murdering a women termed as ‘daayan’ in the tribal areas and elsewhere in the State of Jharkhand is imprisonment varying from 6 months to 1 year and/or a penalty of Rs. 1000-2000 depending on the applicable section of the Act.
- The Chattisgarh Tonahi Pratadna Nivaran Act, 2005: This act provides for imprisonment of 1-5 years as punishment and/or fine for traditional healers who allegedly cure the ‘witch’. The act is distinguished from the other state enacted legislations because the amount of fine to be paid in such cases is determined on the basis of physical harm and mental agony caused to the victim including the cost of her treatment.
- Orissa Prevention of Witch Hunting Act, 2013: Any person who degrades the dignity of a woman termed as ‘witch’ and is paraded with painted face or any act incidental thereto is punished with imprisonment of 1 to 5 years and/or with a fine of Rs. 1000.
- The Assam Witch-Hunting (Prohibition, Prevention and Protection) Bill, 2015: Making witch hunting a non-bailable, cognizable and non-compoundable offence, this act provides for a punishment extending upto life imprisonment and/or fine upto Rs. 5 lakh if a woman commits suicide after being stigmatized, intimidated and defamed in the society after being accused of turning into a witch.
- The Rajasthan Prevention of Witch-Hunting Bill, 2015: Section 4 of this act provides for punishment of 1 to 5 years and minimum fine of Rs. 50,000 if a woman is tagged asa witch and is asked to consume inedible substances, paraded naked or is displaced from her property.
Unravelling the efficacy of IPC provisions
‘Dayan Pratha’ or ‘Witch-hunting’ in India is not just an archaic concept but a sad reality. Till date, there is no national legislation governing crimes relating to witch-hunting reasoned on the fact that the Indian Penal Code, 1860 (“IPC”) is equipped to deal with such offences.
Section 323 of the IPC deals with “voluntarily causing hurt” prescribing a punishment upto1 year imprisonment and/or fine upto Rs. 1,000. Unfortunately, the punishment under this section is same for hitting a person as it is for brutalizing a “witch”. Further, under Sections 300 and 302 offence of murder is punishable with life imprisonment or even death. Section 354 prescribes upto two years imprisonment for outraging the modesty of women. Other similar provisions are Section 376 that penalizes rape, Sections 499-501 dealing with defamation, Sections 399- 348 for wrongful restraint and confinement and Sections 359-369 for kidnapping and abduction. However, it has been observed that the conviction rate is very low in such cases and in absence of any law and procedure complaints are mostly registered under trifling sections like Section 323.
Further, many a times, cases are dismissed owing to either lack of evidence as witnessed in Tula Devi and others v. State of Jharkhand or undependable testimony of the victim as seen in Madhu Munda v. State of Bihar. Therefore, it is inferred that enactment of a specialized national legislation, dealing specifically with witch-hunting and other similar superstitious practices that would distinctly define offences like blackening of face, parading, etc. so as to prevent trivialization of offences as “simple hurt”, is the need of the hour.
Need For A Centralized Legislation
Witch-hunting phenomenon is the utmost dehumanizing, degrading act and the most horrific form of human rights violation as held in Bhim Turi v. State of Assam. It not only violates basic fundamental rights guaranteed under Article 14, 15, and 21 of the Constitution, but also several provisions of various International legislations like ‘Universal Declaration of Human Rights, 1948’, ‘International Covenant on Civil and Political rights, 1966’, ‘Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment 1975’ and ‘Convention on the Elimination of All forms of Discrimination against Women 1979’.The provisions of IPC are not well equipped to deal with the offences relating to witch-hunting as cognizance of human sacrifice is taken only after commencement of murder. Also, the brutal acts of torturing women are often trivialized as “simple hurt” measured only in terms of the physical harm caused to the victim, completely disregarding the mental harm done to her… There is also a lack of accountability in state legislations as withdrawal by the victim is not questioned by states which create an atmosphere of immunity. Further, the punishment in various state legislations is meager and does not create a deterrent effect. For instance, in Jharkhand the punishment for ‘witch-hunting’ is a fine of maximum Rs. 2,000 and/or imprisonment extendable to 1 year. This illustrates how such an evil practice is not stringently penalized. Ergo, there is a dire need of a separate law addressing the issues relating to witch hunting.
Nonetheless, till a centralized legislation materializes, it is crucial that the Government and Civil Societies collectively work at grass-root level to eradicate this evil practice. This can be done by creating awareness amongst such communities and by leading sensitization campaigns to educate them regarding the same. Community based organizations could be constructed for eradicating witch-hunting and to recompense, reintegrate and rehabilitate the victims and their families.
The way forward- A Paused Bill
The Prevention of Witch Hunting Bill, 2016 introduced in Lok Sabha by Shri Raghav Lakhanpal on February 11, 2016 has not been given green signal and is still pending as a bill. It distinctively comprises activities only related to witch hunting where the punishment norms for the same are fragmented into 11 categories including imprisonment ranging from 3 months to life imprisonment and/or fine of Rs. 1000-50,000. Sections 3 to 13 of the Bill are categorized as punishment provisions; Section 14 declares that the offence of witch hunting is to be categorized as cognizable, non-bailable and non-compoundable. Section 22 proves to be a welcoming step as it urges the State Governments to provide free medical assistance to the victims of witch hunting. Invocation of some provisions of IPC is also permitted in some cases. Right to free legal aid under Legal Services Authorities Act, 1987 is also provided to the aggrieved victims according to Section 24. Being exhaustive of the effective remedies to be ideally provided to victims of such heinous crime, the pendency of this bill for over 4 years now is just resulting in the increasing number of witch hunting cases. The said bill if passed and enforced, will provide relief to the innocent women who are boycotted from society in the name of ‘witchcraft’.
Concluding Remarks
The only type of innocent people who yell “WITCH HUNT” are the kind who are really guilty!
-Ed Krassenstein.
Witch-hunting is a barbaric, misogynistic, and inhumane actuality of our society. These activities have survived in our society without being restrained owing to inefficiency of prevalent state laws. However, authorities cannot be solely blamed for not being heedful enough, as for any law to influence and affect, it is important that people choose to imbibe and comprehend the rationale behind it, which people are not capable of, owing to bizarre superstitious beliefs. The Government seems to neglect such substantial factors and remain venerated by the illusion that presence of penal laws would suffice, without focusing much on the ground realities. It is high time that the Government takes cognizance of such matters and analyze inadequacy of prevalent anti ‘witch-hunting’ laws else the lone women of the country will keep enduring brutalization and harassment for an anticipated future.
[The authors are 4th year students pursuing B.A.LLB (Hons.) from National Law University, Nagpur.]
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