“They stripped me off my clothes, I pleaded them not do so, I am innocent but they wouldn’t stop”- Chhattisgarh, India[1]
“There is a man in our village who believes that his wife is not conceiving because of my witchcraft” -Jharkhand, India[2]
“In the past, we beat up such witches and chased them away, then they both died, yes they both died”-Assam, India[3]
Witch hunting, a practice based on the fallacy of the mindsets of a nation that has covered over two decades of entering into the 21st century. The question of the prevalence of such practices in a country that claims to be “modern” and where society is assumed and supposed to work in a rational, reasonable and moral manner remains unanswered. The fact that such acts exist speaks of the nimiety of impracticality engraved inside the mindset of people.
The “modern nation” as the state claims it to be, suffers from highly superstitious beliefs that violate the law of the land, the Constitution. But such practices, though in dire need, have not gained culpability on a national level. A few states have state legislations but the increasing statistics call for a graver measure. The point emphasized here is that the origin of witch-hunting, although had begun through a focal of delusional traditional beliefs, has now evolved into a practice carrying the notions of patriarchy and casteism.
This blog discusses the dearth of liability for witch-hunting on a central level and the measures or amendments which must be made to implement the same along with an analysis of the loopholes if such a law is brought into existence. This blog will also discuss the causes and the requirement of recognising this practice through the lens of patriarchy, casteism and rigid societal beliefs.
Genesis and Causes:
Witchcraft emerges from the root words- wicce and craft. The former means a ‘witch’ while the latter refers to ‘skill or ability’.[4] The belief in sorcery and black magic inclined people to curb the same through witch-hunting. The miseries of people in a village or a town were blamed on a woman, she was then labelled as a ‘daini’, ‘dayan’, ‘chudail’, etc and hereinafter she was beaten to death, murdered, tortured, ordered to fled or were isolated from the village.
Witch-hunting owes its past to a recognised and infamous incident, the “Santhal witch trials” during the colonial period in the Chota Nagpur region.[5] The Britishers used the caste-culture-gender trilogy to break the solidarity and establish their rule. This incited a sense of garbing and protecting the culture or community’s traditions in indigenous people, therefore giving birth to practices creating disorder. Such ethnic revivalism forced them to rely on their traditional knowledge system and guard their culture.[6]
According to the data by National Crime Records Bureau, there have been around 2500 cases of witch-hunting between 2000-2016.[7] The number of cases seem small in regards to other such offences but the reporting of such cases is equally less. This needs substance of law considering the background of the act which is inscribed in the customs and religious beliefs which makes it difficult to eradicate the emotional association of an individual with the faith he/she believes in. The question that holds value is the spawn of concepts like gender discrimination, casteism and marginalisation of backward classes disguised as safeguarding traditional beliefs.
Exploitation has become the genesis of witch-hunting specifically in rural areas. The higher-classes take advantage of the vulnerability of people from backward classes. The term “class” here denotes both -caste and economic background. The prerogative of empowerment of the Dalits hasn’t reached the deeper strata of the society thus resulting in the marginalisation of the lower and the backward classes. The Brahmanical superiority take this as an opportunity to oppress the flourishing lower castes or individuals going against their conventional norms. The socioeconomic inequalities force the poor and unemployed people to fall prey to such customs. In the rural scenario, class usually overlaps with caste. The influential family setup subjugates the Dalits from growing hence resulting in poor literacy and higher unemployment rates. The subjugation acts as a barrier to their development therefore leaving them to the dominance of the high class. Whosoever goes against this set-up, is declared a witch and tortured.
Witch-hunting threatens the empowerment of women in rural areas and the lack of awareness about gender equality facilitates the process. The targeted are mostly women and such selection is based on the fact that women who are either vulnerable to exploitation or who are independent and opinionated are easier to be labelled as “witches”. Instances have been recorded where women who refused to return sexual favours were declared witches by misogynistic mindsets.[8] Property disputes are won by superior families by labelling the woman of the opposite family as a witch thereby shifting the focus of the people from the dispute to protecting themselves from the miseries that a witch might bring in. Widows or unmarried women in ownership of property are condemned through such practices and their growth or liberty is considered as “supernatural”.[9] Dalit women have to bear the burden of being a part of an underprivileged caste and gender and are exploited the most.[10] The filing of cases essentially becomes more difficult for them due to social stigmatization and fear of the power of the higher class on their personal lives.
Superstitious beliefs and customs were not only a result of ethnic revivalism in pursuit of the protection of the personal or religious domain from state interference but also from the lack of awareness of the layman of their religious texts and books. It is a consequence of the exclusivity of such literature only in the hands of Brahmins. The specified role of brahmins as inscribed in the Varna system, to interpret the religious texts has kept the other classes in the dark resulting in the propagation of fake and destructive practices in the name of religion.
Need for a Central Legislation:
Incidents of witch-hunting have been as of now recorded only in 13 states -Jharkhand, Bihar, West Bengal, Odisha, Haryana, Gujarat, Rajasthan, Madhya Pradesh, Uttar Pradesh, Assam, Chhattisgarh, Karnataka and Maharashtra.[11] Witch hunting has not been recognised as an offence on a national level but a few states have enacted state-level legislation to curb the practice. Bihar was the first state to attach criminal liability to witch-hunting through the act, The Prevention of Witch (Daain) Practices Act, of 1999.[12] However, the punishment for the same is a fine of ₹1,000 or an imprisonment of three months which is extremely low in regards to creating a deterrence against the offence. Presently, out of the aforementioned 13 states, only 8 states have implemented a legislation and Gujarat, West Bengal, Madhya Pradesh, Uttar Pradesh and Haryana are yet to recognise the act as an offence.[13]
The main concern is the lack of culpability and liability of the practice in states where legislation hasn’t been enacted. Culpability is the measure of categorising an action as ‘good’ or ‘bad’ and through that, a liability in the form of fine or punishment is attached to that action. Therefore, a logical derivation is that the liability of an action is always preceded by the culpability of the same. Injustice rises in states where there are cases of witch-hunting without a provision for the victims. The remedy available to them is in the Indian Penal Code and the Constitution. For Dalits, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989[14] is available as a specific law. But there is no recognition of the act in its original self. The aforementioned laws provide for a remedy that would constitute the act and not the act in itself.
The importance of recognition of a practice and not just the actions constituting it can be done through understanding the consequences of that practice. In majority of cases, there have been involvement of criminal force and assault like grievous hurt, rape, sexual harassment, murder, etc. These acts have a remedy available under the Indian Penal Code. But there are other set of impacts too which involves cases where victim is forced to leave their village or are isolated. Such impacts do not constitute criminal liability and thus would render the victim injustice. This would spark a debate that forcing a person to leave his/her village is an infringement of their fundamental right but that would constitute a public law remedy and wouldn’t treat witch-hunting as a criminal offence.
This calls for a provision that would treat both kinds of impacts on an equal pedestal and would provide a criminal remedy in both scenarios. A jurisprudential aspect is to be considered here regarding the reasons why a law is formed. Empowerment is our major factor for the existence of a provision or an act such that substantive equality and protective discrimination are established. Witch-hunting is typically a gender-specific offence and a lack of remedy calls for the implementation of Article 15(3).[15] While the state is introducing schemes and certain statutes to empower women and to bring them on an equal pedestal as men, acts like witch-hunting create an obstacle in achieving the objective. The wave of feminism alarms the state of the detrimental effect of the lack of central legislation on an existing marginalised community. The lens of casteism supports the idea too as the plight of Dalits is pivotal here. Therefore, the exploitation and marginalisation of the socio-economically backward communities need the government’s interference on a national level.
In 2016, The Prevention of Witch-Hunting Bill was introduced by Mr Raghav Lakhanpal in Lok Sabha.[16] The draft bill provided for a punishment ranging from 3 months to life imprisonment and a fine ranging from Rs. 1000 to Rs. 50,000. It has been categorised as a non-bailable, non-compoundable and cognizable offence.[17] The bill provides for rehabilitation, and free medical and legal assistance to the victim but is silent on the point of whether the rehabilitation is in the form of mental aid which would include therapy, counselling sessions etc. or economic rehabilitation. It cannot be derived from section 23 whether the rehabilitation shall be provided to the victim after the accused has been convicted or during the interim stage drawing an analogy to section 357A of the Code of Criminal Procedure. Section 357A provides for a victim compensation scheme and obliges the state to provide interim relief to the victim while the trial is ongoing.[18] This kind of provision is necessary for the victims as a majority of them belong to the subaltern regions and are looked down upon by the society and this was established in the case Moyna Murumu v. State of West Bengal.[19] Hence, to achieve the aims of restorative justice, a section for interim relief should be laid down.
The problematic issue is that the bill has been pending in the Lok Sabha for 7 years. A cognizance of the matter at hand should be done with due consideration to the requirements of society. Legislation on a central level is needed not only as an instrument to providing justice against an offence but also to create a deterrence against such practices generating from a similar root cause. The existing provisions are neither proportionate to the brutality of the crime nor target the causes of the crime. The jurisprudential aspect is that any legislation made should target the cause of the crime as the objective of any law is to prevent such practices from re-occurring. Constitutional provisions enforcing the empowerment of socio-economically backward classes under Articles 15(3)[20] and 15(4)[21] should be implemented. Several international conventions like ‘The Universal Declaration of Human Rights, 1948’,[22] ‘The International Covenant on Civil and Political Rights, 1966’,[23] and ‘The Convention on the Elimination of All Forms of Discrimination against Women, 1979’,[24] to which India is a signatory should be duly implemented.
Loopholes of the prospect law:
A new legislation is brought to cater to the requirements of the society and meet the ends of justice but to introduce such a kind of law needs deliberation on its impacts and the complications it might face. It is important to note that a law made to curb practices originating from the personal domain would need a victim-centric approach. Witch-hunting is a deeply societal offence. Such crimes should not be just criminalised for the sake of attaching liability to them but also to make a provision that doesn’t hamper the personal domain and doesn’t make a marginalised community/communities in target more marginalised.
The Prevention of the witch-hunting bill, 2016 is a proposal for a national-level legislation.[25] This bill shall treat witch-hunting as an offence throughout the territory in a uniform manner. But is the offence uniform and static in nature? The answer is no. Different methods of treating a witch and committing this offence exist in different states. While one state would apply known methods of torture like grievous hurt, rape, social ostracization, etc, other states would apply methods originating from religious beliefs which wouldn’t be physically harming but would shake the mental consciousness of the victim. The problem is that this offence is localised and though is a crime against women yet is not similar to rape, which is more of a centric issue. The state-level legislation though sparks inequality but the religious and cultural differences across a diverse nation like India cannot be ignored. Therefore, specific anti-witch hunt legislation cannot be discarded and a more viable solution should be sought for.
In arguendo, even if we bring a national-level act, there are various complications present in the present model. In Jitu Murmu vs. the State of Odisha, the issue of witness testimony was recognised.[26] The target community of witch-hunting in most cases is Dalit women. Being an offence prevalent in the subaltern regions, there lies the concern of cognitive enslavement. People living in a close-knit sphere usually follow high-class influential families and are scared to revolt against them. There is a delusional mindset that obeying such families would guarantee their security and vice versa would bring them danger. The threat and criminal intimidation resulting from the dominance of the accused is one of the major causes of witnesses turning hostile. Hence, many eyewitnesses refuse to give any statement against the socio-economically powerful accused.
Another drawback that we might face on a national level is about the burden of proof. Offences where victims go through extreme mental trauma and face stigmatization and backlash from society should not be bearing the brunt of proving that they are “aggrieved”. The new law or even in the existing state provisions, a section similar to 114A of the Indian Evidence Act should be introduced to shift the burden of proof on the accused.[27] This would also facilitate the process of administering justice as it wouldn’t be the victim’s responsibility to collect evidence specifically where the accused can dominate or influence the victim.
Conclusion:
“Asato ma sadgamaya, tamas ma jyotirgamaya”, is a Sanskrit phrase that means a collectively evolved social mindset of the people who held a firm belief in a knowledge-based society and relatively free from regressed and abject superstition.
A nation progressing in science and technology is struggling with absurd ideologies of their religious domain. Prevention should be the objective rather than curing the problem. The government should either formulate state-level legislation in all the states by expanding its horizon or pass a national legislation to uniformly curb the practice. The main purpose of any law should be to render justice to the victim and society in general. But witch-hunting is a crime originating from religious practices and customs which makes it difficult to develop a predominance of legal spirit. The consequences of any such law should be given due importance otherwise it would create public disorder.
A national legislation will solve the issue legally while keeping its main objective of providing justice but society is in a dearth need of the evolution of mindsets of people from such obsolete traditional practices that violate the fundamental and human rights of the other person. A simple legislation wouldn’t help to eradicate the root cause of the problem and something in addition to it is required. It would only raise fear in the minds of people who are exposed to the legal world while the deeper strata of society would continue to practice such crimes even with the introduction of a harsher punishment.
The government should implement awareness programmes, free counselling sessions, literacy programmes, and cultural events with the help of non-governmental organisations to evolve the frame of mind of the agrestic. Media, the fourth pillar of democracy, should provide a platform for victims of witch-hunting to share their grievances and cover such news in rural areas. Employment conditions should be improved and ojhas (witch-doctors) should be provided with alternate job opportunities.
A central legislation is necessary to implement the constitutional provisions but not at the cost of increasing the inequalities by treating unequals equally. Uniformity should be brought in after deliberation over the prevailing socio-cultural and socio-economic conditions. An aim to implement reformative and restorative forms of justice while creating a deterrence should be established. Justice will not be served until those who are affected are as outraged as those who are.
[1] India matters: Witch-hunting in Chhattisgarh (aired: February 2003) (2013) YouTube. Available at: https://youtu.be/rSNKuIArnbk?si=nWgiG1ORS2CODPSh (Accessed: 25 August 2023).
[2]India’s modern day witch hunts (2015) YouTube. Available at: https://youtu.be/a0qCcwwj14c?si=4k1rIdVuLCf6e2fT (Accessed: 25 August 2023).
[3] Witchcraft: India’s Deadly superstition: The New York Times (2016) YouTube. Available at: https://youtu.be/-ac2poaDr6U?si=ZRVwDPkajlOtSvny (Accessed: 25 August 2023).
[4] Bites, A.L. (2021) Witch-hunting in India: The need for a central legislation, Legal Bites. Available at: https://www.legalbites.in/witch-hunting-in-india/ (Accessed: 25 August 2023).
[5] (2022) Witch Hunt Violence in India: (concocted) superstition and the (in … Available at: https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/11/Manaswi-Witch-Hunt-Violence-in-India-Concocted-Superstition-and-the-InAdequacy-of-Special-Laws-A-Critical-Analysis-2.pdf (Accessed: 25 August 2023).
[6] Cclsnluj (2022) Practice of witch hunt in India: Fallacies in statutes and exigency for a central legislation (gender-based violence), The Criminal Law Blog. Available at: https://criminallawstudiesnluj.wordpress.com/2022/04/04/practice-of-witch-hunt-in-india-fallacies-in-statutes-and-exigency-for-a-central-legislation-gender-based-violence%EF%BF%BC%EF%BF%BC/ (Accessed: 25 August 2023).
[7] Kakra, V. (no date) Witch Hunting in India – Need for a Central Legislation, Journal of Applicable law and jurisprudence. Available at: https://calr.in/wp-content/uploads/2021/09/Witch-Hunting-in-India-%E2%80%93-Need-for-a-Central-Legislation_Vidya-Kakra-.pdf (Accessed: 25 August 2023).
[8] (2022) Witch Hunt Violence in India: (concocted) superstition and the (in … Available at: https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/11/Manaswi-Witch-Hunt-Violence-in-India-Concocted-Superstition-and-the-InAdequacy-of-Special-Laws-A-Critical-Analysis-2.pdf (Accessed: 25 August 2023).
[9] (2022) Witch Hunt Violence in India: (concocted) superstition and the (in … Available at: https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2022/11/Manaswi-Witch-Hunt-Violence-in-India-Concocted-Superstition-and-the-InAdequacy-of-Special-Laws-A-Critical-Analysis-2.pdf (Accessed: 25 August 2023).
[10] Yadav, T. (no date) Witch hunting: A form of violence against dalit women in India – JSTOR, Brandesis library. Available at: https://www.jstor.org/stable/48643572 (Accessed: 25 August 2023).
[11] Rai, D. (2020) Atrocious witch hunting attacks in India: Need for central legislation, iPleaders. Available at: https://blog.ipleaders.in/witch-hunting-attacks-in-india/ (Accessed: 25 August 2023).
[12] Ray, U.K. (2023) Witch hunting in Bihar is no less than culturally sanctioned murder, Outlook India . Available at: https://www.outlookindia.com/national/witch-hunting-in-bihar-is-no-less-than-culturally-sanctioned-murder-magazine-265392 (Accessed: 25 August 2023).
[13] Rai, D. (2020) Atrocious witch hunting attacks in India: Need for central legislation, iPleaders. Available at: https://blog.ipleaders.in/witch-hunting-attacks-in-india/ (Accessed: 25 August 2023).
[14] (1989) The scheduled castes and the scheduled tribes (prevention of atrocities … Available at: https://www.indiacode.nic.in/bitstream/123456789/1920/1/a1989-33.pdf (Accessed: 25 August 2023).
[15] INDIA CONST. art. 15, cl. 3.
[16] Iasparliament (2022) A blank in black magic law: Prelim bits: Current affairs, ias parliament current affairs. Available at: https://www.iasparliament.com/current-affairs/prelim-bits-5/a-blank-in-black-magic-law (Accessed: 25 August 2023).
[17] (2016) Bill No. 66 of 2016 – 164.100.47.4. Available at: http://164.100.47.4/BillsTexts/LSBillTexts/AsIntroduced/4572LS.pdf (Accessed: 25 August 2023).
[18] Code of Criminal Procedure, 1973, § 357A, No. 2, Acts of Parliament, 1974 (India).
[19] Moyna Murmu v. State of W.B., 2016 SCC OnLine Cal 4272
[20] INDIA CONST. art. 15, cl. 3.
[21] INDIA CONST. art. 15, cl. 4.
[22] Universal declaration of human rights (1948) United Nations. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights (Accessed: 25 August 2023).
[23] International Covenant on Civil and Political Rights (1966) OHCHR. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights (Accessed: 25 August 2023).
[24] Convention on the elimination of all forms of discrimination against women new york, 18 December 1979 (no date) OHCHR. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women (Accessed: 25 August 2023).
[25] (2016) Bill No. 66 of 2016 – 164.100.47.4. Available at: http://164.100.47.4/BillsTexts/LSBillTexts/AsIntroduced/4572LS.pdf (Accessed: 25 August 2023).[26] Jitu Murmu vs. the State of Odisha BLAPL No.3707 OF 2020
[27] The Indian Evidence Act, 1872, § 114A, No. 1, Acts of Parliament, 1872 (India).
Author: Nandini Srivastava
Juris Centre 