Author: Muskaan Aggarwal
IV Year | Jindal Global Law School, Sonepat

Introduction:

While some may believe that the issue of witch-hunting has long ceased to exist, the reality tells a different story altogether. A set of communities see this barbaric practice as an attempt to punish those who are a “threat to society”. The punishment includes different ways of torture and violence including bashing, banishing, flogging, parading naked, balding, etc, under the influence of ‘Ojhas’ (also called ‘witch doctors’ or ‘tantriks’).[1]

Shocking Figures of Witch-Hunting:

India specifically has been experiencing high levels of crimes in the name of Witch-Hunting. According to the National Crime Record Bureau Report of 2019[2], Chhattisgarh experienced a rise in witch-hunting-related deaths, followed by other states like Bihar, Assam, Madhya Pradesh, and Jharkhand. It is estimated that about 2300 murders were committed in the name of cleansing the society of the said ‘witches’ from 1999 to 2013.[3]

According to a study conducted by the State Commission of Women and Action Aid Association in Odisha, poor health had been one of the major causes of such branding. According to a report on its causes, society branded about 27% witches due to health issues prevalent in children, 43.5% due to health issues of an adult family member, and the remaining 24.5% and 5% for misfortunate and crop failure, respectively.[4]

Actual Picture is Still Unclear:

Unfortunately, the figures are not wholly reliable, considering most cases go unreported. Moreover, the police files many other cases within the ambit of land/property disputes or other non-related subheads. Further, things become more complicated when ethnic and indigenous groups conduct such activities under the garb of culture and ethnicity.

While ‘witch-hunting’ may sound like gender-based violence, the reality begs to differ. Men too have been victims of this heinous practice. There have been cases where both men and women have been accused of practising black magic against the village and hence, burnt to death for the same.[5] It is quite clear that the practice is inclusive of both gender discrimination, as well as class discrimination. It specifically targets vulnerable sections or communities of society.[6]

Legislation on Witch-Hunting:

Due to the absence of specific national legislation connecting witch-hunting to violence and torture, Indian Penal Code, 1860 (IPC) usually covers the punishment for witch-hunting. Provisions that apply are the broad headings of rape (section 376), murder (section 302), attempt to murder (section 307), hurt (section 323), and outraging a woman’s modesty (section 354).

Further, witch-hunting cases constitute a violation of constitutional provisions. Main provisions are Articles 14 [Right to equality], 15(3) and 15(4) [prohibition of discrimination], 21 [protection of right and personal liberty], 51 [promotion of international peace and security], and 51A [fundamental duties]. The practice of witch-hunting also violates legislations such as the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Protection of Human Rights Act, 1993.

Some states have also taken steps for tackling the menace of witch-hunting. These include the Prevention of Witch (DAAIN) Practices Act, 1999 of Bihar, the Anti-Witchcraft Act, 2001 of Jharkhand, Chhattisgarh Tonahi Pratadna Nivaran Act, 2005 of Chhattisgarh, Rajasthan Women (Prevention and Protection from Atrocities) Bill, 2006 of Rajasthan, Assam Witch-Hunting (Prohibition, Prevention and Protection) Bill, 2018, etc.

Loopholes Within the Existing Statute:

Despite the above legislation being in existence, the problem persists because of the lacunae present within the laws themselves. For example, human sacrifice under IPC is a cognizable offence only when the murder has been committed. The torture that the victims face is examined under ‘simple hurt’ with complete ignorance of the mental trauma they face.

Further, most of the victims end up either not filing a complaint or withdrawing their complaint at a later stage. This is due to societal pressures, or fear of their life ahead. Lack of eyewitnesses is another problem as nobody wishes to testify against the perpetrators due to the fear of being subjected to the same result as the victims.[7]

Even in special state legislation, the punishment for the said crime is very less. For example, under the Rajasthan Bill, the bill provides a punishment of Rs. 5000 penalty and/or three years imprisonment. Similarly, when it comes to the Chhattisgarh legislation, the punishment is rigorous imprisonment for a year and a fine only. Further, there is hardly any mention of special procedures for the trial of such cases.

Effect of Increased Punishment:

It may very well be a point of discussion whether more punishment acts as a deterrent against criminal activity. However, one cannot ignore that increased punishment does help society in recognizing the seriousness of the offence committed.

The experience in Maharashtra confirms this. Due to the outcry against the assassination of anti-superstition activist Narendra Dabholkar, Maharashtra government brought in new legislation. Maharashtra’s Prevention and Eradication of Human sacrifice and Other Inhuman, Evil, and Aghori practices and the Black Magic Act came into force in 2013. It provided for harsher punishments with imprisonment for up to 7 years for the criminal ambit of superstition (including witch-hunting). Maharashtra is considered a successful model for a social shift. Karnataka too sought inspiration and passed an anti-superstition statute following its lead.[8] 

Is Central Legislation on Witch-Hunting the Solution?

Even though the problem is out in the open, the absence of any recognition in law is a major pullback to its acceptance. It is imperative for the government to adequately recognize the problem and criminalize it through the formation of anti-witch-hunting legislation. Odisha High Court highlighted this in the case of Jitu Murumu @ Sukul Murmu & Anr. v. State of Odisha [9]. In this case, the Court observed that the existing laws were inadequate in addressing the prevalent witch-hunting issue in the country.

Mr. Raghav Lakhanpal introduced the Prevention of Witch-Hunting Bill, 2016, in the Lok Sabha. However, the bill’s status remains pending in the lower house.[10] The draft bill provides for punishment ranging from 3 months to life imprisonment and a fine ranging from Rs. 1000 to Rs. 50,000. Section 14 of the Bill clearly categorises witch-hunting as a cognizable, non-compoundable, and non-bailable offence. Further, victims are provided with an opportunity for free medical assistance under Section 22 of the Bill.

This is the closest that we came to having central legislation and other superstition-related crimes in India. Even though the effects of the legislation may be debatable, this is a step in the right direction.

Conclusion:

The first step is to take efforts to spread awareness and sensitize the communities to the existing problems. We need to help the victims to come forward and take a stand against crimes committed against them. This can be achieved by putting adequate safeguards in place along with proper rehabilitation facilities and a justice dispensation mechanism. Ms. Chutni Mahato from Jharkhand,[11] who had also been awarded the Padma Shri for her contribution towards rescuing women victims of witch-hunting, has been an inspiration for many to come forward and fight against this menace.

Adequate recognition and proper implementation mechanisms for the laws against witch-hunting will provide an opportunity for change. States, especially the ones with maximum cases of witch-hunting, should set up special cells. Help can also be taken from Panchayat, social activists, and other frontline workers. Hence, even though it might take time, it is possible to fight against this deplorable practice. However, efforts will have to be made through the proper coordination of grass root-level workers and state machinery.

[1] Nidhi Bajaj, Atrocious Witch Hunting Attacks in India: Need for Central Legislation, iPleaders (Jan. 29, 2020), https://blog.ipleaders.in/witch-hunting-attacks-in-india/.

[2] National Crime Records Bureau, Crime in India 2019, Statistics Volume – I, Ministry of Home Affairs (2019), https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf.

[3] Debabrat Patra and Evangelina Patro, World Human Rights Day: Is an India free of witch-hunts possible, DownToEarth (Dec. 07, 2021), https://www.downtoearth.org.in/blog/governance/world-human-rights-day-is-an-india-free-of-witch-hunts-possible-80579.

[4] Odisha State Commission for Women, Witch-Hunting in Odisha, (Dec. 2021), http://oscw.nic.in/sites/default/files/Witch%20Hinting%20In%20Odisha-ActionAid%20Association-2021.pdf.

[5] Witch Hunting – a social problem in India, Journals of India (Dec. 16, 2020), https://journalsofindia.com/witch-hunting-a-social-problem-in-india/?print=pdf.

[6] Murali Krishnan, Witch-Hunting driven by class and gender discrimination in tribal areas in India, RFI (Feb. 26, 2022), https://www.rfi.fr/en/international/20220226-witch-hunting-driven-by-class-and-gender-discrimination-in-tribal-areas-of-india.

[7] Tula Devi And Ors. vs The State Of Jharkhand And Anr., 2006 (3) JCR 222 Jhr; Madhu Munda And Ors. vs State Of Bihar, 2003 (3) JCR 156 Jhr.

[8] Astha Madan Grover and Sushovan Patnaik, State anti-superstition laws not enough. India needs a central law, focus on victim not crime, The Print (Dec. 09, 2020), https://theprint.in/opinion/state-anti-superstition-laws-not-enough-india-needs-a-central-law-focus-on-victim-not-crime/563439/.

[9] BLAPL No.3707 OF 2020 (High Court of Orissa: Cuttack).

[10] The Prevention of Witch-Hunting Bill, 2016 (Bill No. 66 of 2016), http://164.100.47.4/billstexts/lsbilltexts/asintroduced/4572LS.pdf.

[11] Ashwini Shukla, Exorcising social evil: Jharkhand’s Chutni Mahato awarded Padma Shri for rescuing women from witch hunting, Gaon Connection (Sep. 27, 2022), https://en.gaonconnection.com/exorcising-evil-chutni-mahato-from-birbans-in-jharkhand-awarded-the-padma-shri-for-her-fight-against-witch-hunting/.