OP. ED.

Introduction and thesis

The Rajasthan Prevention of Witch-hunting Act, 2015 (hereinafter “the Act”) came into force in April 2015. The special enactment, as the name suggests, is ostensibly targeted at combating the problem of witch-hunting that prevails in the State. The Preamble to the Act states that the objective of the Act is to “provide effective measures” to “tackle the menace of witch-hunting” and to “prevent the practice of witchcraft”.[1] While the Act has been in force for more than three years now, no conviction under the Act has resulted as of yet.[2] As there is no ruling of the High Court interpreting any of the provisions of the Act,[3] the Act itself along with the Rules made thereunder, “the Rajasthan Prevention of Witch-hunting Rules, 2016” (hereinafter “2016 Rules”) holds fray. The thesis of this essay is that the Act suffers from a problem of overcriminalisation, as is evidenced primarily by Section 2(b)[4] and Section 8[5] of the Act.

Overcriminalisation and the definition of witchcraft under the Act

While a society founded on principles of liberty ought to respect the autonomy of its citizens, the State has the power to criminalise certain modes of conduct.[6] The State’s power to criminalise must be strictly construed, and any overreach of these powers to criminalise conduct not justly falling within the ambit of criminal law must be promptly struck down.

Section 3 of the Act prohibits the commission of witch-hunting and exercise and practice of witchcraft. “Witchcraft” finds a rather peculiar definition under the Act. Generally, it is a central principle of criminalisation that there must be an actus reus (guilty act) and mens rea (guilty state of mind). When either of the two elements is lacking, criminalisation does not generally follow. Under the definition section, the actus reus is the “use of supernatural or magical power” to “call up spirit or cast spell or discover the whereabouts of stolen goods”.[7] The mens rea that the definition provides for is “evil intention”. The actus reus constituting the offence — use of supernatural power — is an impossible act. Even the mens rea requirement of “evil intention” eludes definition. Matters are further complicated by the punishment section for the offence, which adds the additional mens rea requirement of the intention to “cause harm or injury” to any person. The exercise seems largely redundant, as the two mens rea requirements have a significant overlap.[8]

A frustrated actus reus and a vague mens rea thus makes the criminalisation of the exercise and practice of witchcraft absurd and vulnerable to being deployed against minorities. Indeed, the special laws targeted at witchcraft and witch-hunting overwhelmingly target practices of the Dalits and the Adivasis, victimising them further.[9] It must also be remembered at the outset that witch-hunting is a gendered offence, with women being the prime victims of the act.[10] It may thus not be far-fetched to infer that the provision criminalising practice of witchcraft may be put in service of the same motive unfounded allegations of witchcraft are levelled against women for: to rob them of their property or to settle grudges with them,[11] among other “reasons”, albeit this time using State machinery. Moreover, the scheme of the Act appears to be confused: though it is targeted at tackling the problem of witch-hunting the victims of which are usually women and minorities, it also criminalises practice of “witchcraft”, an allegation that usually targets women and minorities. It is submitted that such a result is improper and undesirable for a criminal statute.

Overcriminalisation and the imposition of collective fines

Under Section 15 of the Act, the State Government is empowered to make rules for the implementation of the provisions of the Act. The 2016 Rules have been made in exercise of this power.[12] The 2016 Rules, which came into effect on 26-1-2016 prescribe the manner of inquiry to be undertaken for the imposition of collective fine in an area under Section 8 of the Act. The power of State Government to impose collective fine is to thus be found in Section 8 of the Act read with Rule 3 of the 2016 Rules. This becomes amply clear from the fact that the language of Section 8 itself provides for an “inquiry in the prescribed manner”[13] and Rule 3 lays down the manner of “inquiry under sub-section (1) of Section 8”[14]

Fine is a form of “punishment” under the Penal Code, 1860.[15] Only a sentence authorised by law can be passed by a court of competent jurisdiction.[16] Under the Code of Criminal Procedure, 1973 (hereinafter “the Code”) the criminal law process is divided into the stages of investigation, inquiry and trial. Inquiry follows an investigation and precedes trial, and no penalties generally can be imposed after an inquiry. However, under Section 8(1) read with Rule 3(1), a Sub-Divisional Magistrate may impose a collective fine after conducting only an inquiry. This is against the basic tenet of criminal law that no sanction can be imposed without there being a formal determination of guilt in place.

Rule 3(4) stipulates that the Sub-Divisional Magistrate, while conducting the inquiry, shall adhere to the procedure for summary trials laid down in the Code.[17] However, it must be noted that the procedure for summary trials only gives the Magistrate concerned the power to “try” summarily and not to “inquire” summarily.[18] The language of the section is also vague and uncertain, thus going against the tenets of “fair warning”[19] and “maximum certainty”[20].

It seeks to impose fine on even those who may be “concerned in” the commission of any offence punishable under the Act or who may fail to “render all the assistance in their power” to nab the accused.[21] What qualifies as being “concerned in” the commission of offence is unclear. As far as the duty of persons to aid an ongoing investigation is concerned, an inference may be drawn from Section 39 of the Code. The section fastens a duty on persons to give information about certain offences to a Magistrate or police officer. As compared to offences mentioned in the section,[22] witch-hunting[23] and practice of witchcraft[24] carry comparatively lesser sentences. By enjoining a duty on persons to compulsorily aid the investigation, Section 8 violates the principle of respecting the autonomy of individuals as rational beings capable of making reasoned choices.

Conclusion

Thus, it is submitted that the criminalisation of the practice of witchcraft under Section 2(b) is erroneous since the actus reus for the offence is frustrated and the mens rea constituting the offence is vague. Such criminalisation is also counterintuitive as it makes the law itself an instrument of further victimisation of women and other minorities affected by the practice. The imposition of collective fines on the inhabitants of a defined area is also problematic since the sanction does not flow from a formal adjudication of guilt, and since forcing the inhabitants of such areas to compulsorily aid the investigation process is to disrespect their basic autonomy as human beings. Thus, for reasons given hereinabove, I submit that Sections 2(b) and 8 of the Rajasthan Prevention of Witch-hunting Act, 2015, present a problem of overcriminalisation, which is symptomatic of the entire legislation.

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† IVth year student, National Law School of India University, Bangalore, e-mail: palashsrivastav28@gmail.com/palashsrivastav@nls.ac.in.

[1]  Preamble, The Rajasthan Prevention of Witch-hunting Act, 2015.

[2] M.P. Singh, 50 cases of witch-hunting in Rajasthan in over a year, not one conviction, Indian Express (31-8-2017), available at <http://indianexpress.com/article/india/50-cases-of-witch-hunting-in-rajasthan-in-over-a-year-not-one-conviction-4821381> (last visited on 10-6-2018). No recent data is available with major reporters or the website of the High Court of Rajasthan.

[3] There is only a bail application where the accused is enlarged on bail by the Rajasthan High Court under S. 439 of the Code of Criminal Procedure, 1973 — Mohan Singh v. State of Rajasthan, 2016 SCC OnLine Raj 7892.

[4] Definition of “witchcraft”.

[5] Power of State Government to impose collective fine.

[6] A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, 14 (4th Edn., 2010).

[7] S. 2(b), Rajasthan Prevention of Witch-hunting Act, 2015.

[8] For instance, is the “use of supernatural power” to cause an epidemic (a charge often levelled against women accused of witchcraft) a case of evil intention or of intentional harm or injury?

[9] M. Mehra and A. Agrawal, “Witch-hunting” in India? Do We Need Special Laws, 51(13) Economic & Political Weekly 51, 52 (2016).

[10] National Crime Records Bureau, Motives of Murder — 2016 (table) available at <http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf> (last visited on 10-6-2016).

[11]  M. Mehra and A. Agrawal, “Witch-hunting” in India? Do We Need Special Laws, 51(13) Economic & Political Weekly 51, 52 (2016).

[12]  Preamble, Rajasthan Prevention of Witch-hunting Rules, 2016.

[13]  S. 8(1), Rajasthan Prevention of Witch-hunting Act, 2015.

[14]  R. 3(1), Rajasthan Prevention of Witch-hunting Rules, 2016.

[15]  S. 53, Penal Code, 1860.

[16]  Ss. 28 and 29, Code of Criminal Procedure, 1973.

[17]  Chapter XXI, Code of Criminal Procedure, 1973.

[18]  Ss. 260 and 261, Code of Criminal Procedure, 1973.

[19]  A reasonably precise definition of an offence so any reasonable person can form an idea as to what conduct is prohibited.

[20]  The definition of any offence must be certain so that the scope of arbitrary discretion is limited and the individual has enough knowledge to regulate her/his conduct.

[21]  S. 8, Rajasthan Prevention of Witch-hunting Act, 2015.

[22]  Such as offences against the State, offences affecting life et al.

[23]  S. 4, Rajasthan Prevention of Witch-hunting Act, 2015.

[24]  S. 5, Rajasthan Prevention of Witch-hunting Act, 2015.

Case BriefsHigh Courts

Gauhati High Court: In a case before the Court, the appellant had appealed against the judgment of the Sessions Court which sentenced them under Sections 302/201/34 of the Penal Code (IPC) to imprisonment for life. The duly proved facts of the case were that the accused persons had murdered the deceased/victims by suspecting them to be ‘Dainees’ (witches).

On adhering to the facts of the case, the Court took note of the fact that inhuman and barbaric practice of witch hunting was still prevalent in parts of Assam and North-eastern State. The Division Bench comprising of Ujjal Bhuyan and Paran Kumar Phukan, JJ. observed that branding of a man or a woman as a witch and then resorting to witch hunting is the most dehumanizing act and is one of the worst forms of human rights violations.

The Bench further highlighted that the Assam Witch Hunting (Prohibition, Prevention and Protection) Bill, 2015, is awaiting assent of the President of India and needs to be passed soon. The Court said that witch-hunting is a socio-legal problem and needs to be curbed soon. The Court noted that in the North-Eastern states, some people, mostly elderly women, are branded as witches and thereafter they are subjected to severe abuse in the name of getting rid of the evil supposed to be in them.

Terming it a social menace, the Bench observed: “Witch hunting as a phenomenon is not only confined to the State of Assam; it has affected large parts of the country. It is rooted in flawed quasi-religious beliefs, antiquated socio-cultural traditions blended with extreme superstitions practices.”

Terming the act as one of the worst forms of human rights violations, the Court confirmed the conviction of two accused and acquitted one giving him the benefit of doubt. [Bhim Turi v. State of Assam,  2017 SCC OnLine Gau 813, decided on 27.10.2017]

 

Case BriefsHigh Courts

Calcutta High Court: While condemning the practice of witch hunting, the Court issued certain directives for the State Government in order to eradicate the evil practice of witch hunting.

In the present case, the petitioners were driven out of their villages on suspicion of practicing witchcraft. The Counsel appearing for the Petitioners have submitted that the petitioners have been restored to their home and hearth and adequate police assistance has also been given to them.

The Bench comprising of Joymalya Bagchi J. in view of the observation laid down in Gaurav Jain v. State of Bihar, 1991 Supp (2) SCC 133, directed State Government to undertake the following steps in order to ensure and eradicate the evil practice of witch hunting:-

  • The State Government shall form a Committee comprising of experts from the field of public administration, sociologists, etc. to look into the prevalence of the practice of witch hunting in various districts in the State of West Bengal with special emphasis in tribal areas and the Committee shall submit its report to the State Government within six months from date of the order;
  • The Committee shall specify in its report the areas in the State of West Bengal, if any, where there is substantial prevalence of the practice of witch hunting and based on such report the Government shall form special cells in the concerned districts to deal with the issue of witch hunting in the said districts. The Government shall also post intelligence and police officers in such special cells who would carry on surveillance activity, collection of information and/or intelligence in the matter and, if necessary, take preventive measures to ensure that such unlawful practices are not carried on;
  • Officers of the special cell would also, in the event a witch hunting activity is indulged, promptly register criminal cases against the offenders and take necessary remedial measures in the matter;
  • The victims of witch hunting shall be given District legal assistance through the Legal Services Authority as aggrieved persons who are entitled to legal aid under The Legal Services Authorities Act, 1987 and they shall also be extended necessary medical and psychological help and/or protection as they are the vulnerable witnesses of the crime by the State.
  • The State Government may also explore the possibility of formulating a Comprehensive Victim Compensation Scheme under Section 357A of the Code of Criminal Procedure for victims of witch hunting.

[Smt. Moyna Murmu v. State of West Bengal, 2016 SCC OnLine Cal 4272, decided on August 2, 2016]