Final Draft of the Bill as drafted by legal team of HRDI
The Prevention and Protection of Witch Hunting Bill, 2013
Statement of Objects and Reasons
Violence against women is a burning issue. The Government of India has enacted various legislations to deal with various offences against women. These legislations include the incorporation of section 498A in the IPC, Dowry Prohibition Act, Child Marriage Prevention Act, Prevention of Immoral Traffic Act, Protection of Women from Domestic Violence Act, 2005 etc. However, there are still various situations encountered by women wherein they are subjected to torture and atrocities but there are specific laws dealing in those areas e.g. in certain areas women are accused of performing witchcraft and unnecessarily being harassed in the name of witch hunting. At least 12 states — Jharkhand, Haryana, Chhattisgarh, Orissa, West Bengal, Madhya Pradesh, Rajasthan, Andhra Pradesh, Gujarat, Maharashtra, Assam and Bihar — are recognized as areas where witch hunts are rampant even today.
‘Witch hunting’ involves the branding of women as witches, mostly after an ‘ojha’ or witch doctor confirms that a woman is a witch. A woman who is branded a witch is then subjected to numerous forms of torture: beatings, burns, being paraded naked through the village, being forced to eat human excrement, raped, having wooden or sharp objects inserted in her private parts. In some cases her hair is cut off, her teeth are pulled out (she is supposedly ‘defanged’), in some instances her nose or other body-parts are cut off, she and her children are socially ostracized, her land and property is seized, and sometimes women are even put to death and their limbs hacked off. Witch hunting is widely seen to be used as ‘a pretext for suppressing women and gaining personal interest.’
In the tribal villages, the village ‘ojhas’ (known as ‘sorcerers’) boast of their powers to detect a witch – but they will only do so “for a price.” For the overly greedy ojha to declare a woman a witch, villagers simply need to cough up a goat, a bottle of liquor, or any other poultry animal to pay the ojha. When women reject the sexual advances of their male neighbors, it is another cause on the list leading to allegations of witchcraft. Widows who refuse to relinquish claim over their husband’s property can similarly be threatened and charged with being a witch; an act that often succeeds to compel them to let go of their claim on their husband’s land. So we can connects the practice of witch-hunting to the prevalence of patriarchal attitudes, stating that an opposition to women’s rights over property, a general suspicion of female sexuality, as well as a lack of education and health services have contributed to the continuation of the antiquated practice of branding women witches. Therefore, real reasons why women are branded witches are economic gain or sexual vengeance.
If we look at national laws, most witch hunt cases are dealt with by Section 323 of the Indian Penal Code (IPC), which prescribes one year’s imprisonment and a Rs 1,000 fine to anyone who causes harm voluntarily. In other words, the punishment for brutalising a woman by calling her a witch could be the same as that for slapping a person. Apart from this there are other provisions of IPC which are invoked to punish the accused persons involved in the crime of Witch Hunting. The Government of India except the few State legislations donot have any Central Legislation on this burning issue. The Government of India is constitutionally bound to eradicate the atrocities and any humiliating or degrading treatment to women in any form. Moreover, it is also obliged under International Treaty obligations to frame legislation on the issues affecting women. Present bill on the prevention of derogatory practice of Witch Hunting is a first step towards the framing of National Legislation on the subject.
The Prevention and Protection of Witch Hunting Bill, 2013
An Act to provide for effective measures to prevent and protect the women from witch hunt practices and to eliminate torture, oppression, humiliation against women and providing for punishment and, for the relief and rehabilitation of women victim of such offences and for any other matters connected therewith or incidental thereto.
Be it enacted by the Parliament in the Sixty-third Year of the Republic of India as follows-
1. Short title, extent and commencement.-(1) This Act may be called the Prevention and Protection of Witch Hunting Act, 2013.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. Definitions –
In this Act, unless the context otherwise requires:-
(a) “Abettor or Identifier” means any person who brands or identifies any woman as witch or that he instigates, aids or abets such an identification by his words, or by signs or indications or by his conducts aids in instigating any other or that he does anything which tend to cause any person any harm or that causes anything which gives reasonable apprehension in the mind of such person that there may be harm caused to her, or that her dignity or public estimation is damaged or likely to be damaged;
(b) The “Code” means the Code of Criminal Procedure, 1973 (Central Act 2 of 1974);
(c) “Court” means a court of Metropolitan Magistrate or Judicial Magistrate of the first class exercising jurisdiction in the area where offence alleged to have taken place or of any other Judicial Magistrate of the first class or the Court of Sessions specified as a ‘Special Court’ by sub-section (1) of section 11 of the Code;
(d) “Dependents” – the expression dependents for the purpose of this Act means and includes the dependents of women subjected to witch hunting and it includes son’s (legitimate and illegitimate), daughter (legitimate and illegitimate), parents, son’s and daughter’s of a pre-deceased son and son’s and daughter’s of a pre-deceased daughter.
(e) “Government” means the Central Government or the State government as the case may be;
(f) “Ojha” means a person who claims that he has got power or knowledge to identify witches and to have a capacity to attain control over them or he uses Jhad Phoonk, either to cure, protect from evil spirit etc. or that he causes damage, suffering, harm for the purposes of healing any disease might be by giving Tabij, Mantra or any substance claiming having power to heal from witch craft sufferings. He is known as an OJHA, GUNI, SHEKHA, or JAN or any such other name or names and who secretly solicit or uses spells, spirit, magic power, water mixture etc. for the purpose of causing any person loosing wrongfully thereby he gains wrongfully harming, damaging the other one;
(g) “Police Station” means and includes the police station established by Government including the outposts;
(h) “Spells” mean a form of words used as magical charm or incantation used by ojha, Shekha, Guni or Jan.
(i) “Witch” means and includes any woman who has been branded as witch by person or persons in belief that such woman has the power to harm anyone or that she had allegedly having such intention or having the belief that she has bad eyes or evil eyes or could do black magic or that she, by mantras could harm people or society at large, and any other act declaring such woman as a witch.
(j) “Witch Craft” means the supposed power of a person to harm the other by means the secret use of Tabij, or any water or water mixture pretending to be sacred or any other substance or things like spell, spirits, magic powder and other acts done by any person with the intention of causing harm, damage, sickness, to other person or to the property;
(k) “Witch hunting” involves the branding of women as witches, mostly after an ‘ojha’ or witch doctor confirms that a woman is a witch. Witch hunt is the process of prosecution / execution of a witch, often involving mass hysteria and lynching.
(l) “Woman” means female human of any age;
(m) Words and expressions used but not defined in this Act and defined in the Code or the Indian Penal Code (45 of 1860) shall have the meanings assigned to them there as the case may be;
3. Power to appoint Special Judges.
1) The Central Government or the State Government may by notification in the official gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences :-
a) Any offence punishable under this Act; and
b) Any conspiracy to commit or any attempt to commit or any abatement of any of the offences specified in clause (a).
2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973.
4. Cases triable by Special Judges
1) Notwithstanding any thing contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, the offences specified in sub section-1 of Section 3 shall be triable by Special Judges only.
2) Every offence specified in sub Section (1) of Section 3 shall be tried by Special Judge for the area within which it was committed, as the case may be, by the Special Judge appointed for the case, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Government concerned.
3) When trying any case, a Special Judge may also try any offence, other than an offence specified in Section 3 with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.
5. Procedure and Power of Special Judge
1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused person, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973, for the trial of warrant cases by Magistrates.
PUNISHMENT FOR OFFENCES
(i) accuses or identifies or defames, either by words, actions or any other manner, a woman by calling her Daain or Dayan or Dakan or Dakin, Chudail or Bhootni or Bhootdi or Chilavan or Opri or Ranndkadi or Tonahi or Tonaha or Banamati or Chetabadi or Chillangi or Hawa or evil eye or Halka or daini or by any other name or symbol suggesting her to be a witch,
(ii) accuses a woman who is performing any pooja, by use of mantra, tantra etc., as a woman practicing witchcraft aimed at harming any person by supernatural means;
shall be punishable with imprisonment for a term which shall not be less than one years but can extend up to a term of three years and with fine which shall not be less than Rs. 1000 but which may extend to Rs. 5000;
(Proviso Deleted from the initial draft)
4. Whoever, assaults or uses criminal force or causes to assault or to use criminal force against a woman, accusing her to be a witch, resulting into her death, shall be liable for a punishment of death, or life imprisonment.
5. Whoever, intimidates a woman by calling her a witch and accusing her practicing witchcraft, to the extent that the woman is forced to commit suicide shall be punishable with imprisonment of a term which shall not be less than five years but which may extend to imprisonment for life and with fine which shall not be less than Rs. 25000 but which may extend to Rs. 50000;
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
6. Whoever, on the pretext of performing witchcraft or her being ‘Witch’, uses criminal force against a woman and/or instigates or provokes others in doing so with intent to harm and/or to displace her from the house, place or the property, lawfully occupied or owned by her or interferes with her rights over any land or premises or to coerce such woman and her dependents to leave the area of which she is a rightful resident or a visitor, shall be punishable with imprisonment of a term which shall not be less than five years but which may extend to ten years and with fine which shall not be less than Rs. 20000 but which may extend to Rs. 50000;
7. Whoever, on the pretext of performing witchcraft or her being ‘Witch’, assaults or uses criminal force against a woman to remove or causes to remove clothes from her body and demonstrates and parades her naked or with such scanty clothes that fail to protect her modesty, shall be liable for punishment with imprisonment of a term which shall not be less than ten years but which may extend to life imprisonment with fine which shall not be less than Rs. 10000 but which may extend to Rs. 50000;
8. Whoever, on the pretext of performing witchcraft or her being ‘Witch’,
(i) Torture, humiliates, assaults, hurt or causing injuries any woman by the following acts i.e. stoning, hanging, stabbing, dragging, public beatings, burns, having wooden or sharp objects inserted in her private parts, burning of her hair, forced hair shavings, pulling of her teeth out, cutting of her nose or other body-parts, blackening of her face, whipping, branding;
(ii) forces that woman to perform public acts of humiliation or to eat human excreta or to drink urine or to drink or eat inedible or obnoxious substances or to socially ostracized or to stigmatize for life or to prohibit her to participate in auspicious occasions, or to curtail movements and employment;
shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years with fine which shall not be less than Rs. 5000 but which may extend to Rs. 30000;
9. Whoever, with malicious intention harasses the woman to damage her reputation and dignity, or with intention to sexually exploit her or with intent to extort money or the property, or any other ulterior motive brands or identifies her as witch thereby taking the mass in ride against her, shall, in addition to the provisions under Section 383 of IPC, be punishable with imprisonment of a term which shall not be less than three years but which may extend to seven years with a fine of Rs. 10000 which may extend to Rs. 50000;
10. Whoever, in the name of performing witchcraft or her being ‘Witch’, blames that woman for any misfortune that befalls his village which may also include natural disasters, such as droughts, floods, crop loss, illness or any death in the village, shall be punishable with imprisonment for a term which may extend to three years with fine which shall not be less than Rs. 1000 but which may extend to Rs. 10000;
11. Whoever, known as ‘ojha’ or ‘tantrik’ or ‘baba’ in the area, claiming to possess spiritual and/or magical powers, declares any woman as a ‘Witch’ and does any act of healing or curing her or performs any ritual by doing any act of ‘jhadphook’ or ‘totka’ or by any other means and thus in that process causes harm or injury to her to free the woman from the evil spirit shall be punishable with imprisonment of a term which shall not be less than three years but which may extend to seven years with a fine of Rs. 50000.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years.
12. Liability of villagers or group of person (Heading of original draft is changed)
Group of villagers or community or people are involved in the commission, abatement or conspiracy of the offences defined under this Bill, each member of such group of villagers or community or people shall be liable for a punishment of 3 years and fine which shall not be less than Rs.500/- to each but may be extend to Rs. 3000/-.
TRIAL OF OFFENCES
13. Offences to be cognizable, non -bailable and non -compoundable.-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.
14. Presumption as to offences.-
Whenever the victim of the witch hunt as defined under the Act gives the evidence with regard to the commission of the offence, the Court shall presume the commission of the offence and the burden of proving that he had not committed an offence under the Act shall be on him.
15 Sentence of imprisonment for non-payment of fine.-
An offender, willfully or otherwise, failing to pay the fine ordered by the Court, shall be liable to undergo imprisonment as provided under Section 64 of IPC.
16. Fine to be paid as compensation to the victim.-
(1) The fine realized as punishment for an offence under the Act shall be paid to the victim as compensation.
(2) The compensation paid under sub-section (1) shall not be compounded with any other compensation or financial assistance which the government may decides to pay as immediate relief to the victim and the rehabilitation grant payable under section 28 of the Act.
Subject to the provisions of the Code, the aggrieved person shall be eligible to file an appeal to the next higher court within thirty days of the order from the date on which the said order has been passed by the court concerned.
Provided that the court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.
MEASURES FOR PREVENTION & PROTECTION OF WOMEN
18. Measures to prevent and protect women from witch hunt.-
(1) When a police officer receives any information or a report that witch hunt is likely to be committed or there are reasonable grounds to suspect that witch hunt is committed against a woman, shall forthwith proceed to the place and shall take all suitable measures to prevent the witch hunt and to provide protection to the woman including getting her admitted in the recognized protective or shelter home, in case the woman has no place for such shelter.
(2) The police officer shall immediately remove or cause to remove the person and the objects expected to harm the woman. The police officer shall verbally or in writing warn the person or persons accused of having intention or attempting at committing witch hunt against the woman to leave the place immediately and abstain from inflicting any harm upon the woman.
(3) In case the situation warrants the police officer may cause arrest of the person or persons and take action in accordance with section 151 of the Code. The person so arrested shall be produced before the executive Magistrate of the area who shall proceed under section 107 and section 116 of the Code.
(4) (i) Whenever offence against the woman under the Act is reported to the police officer, in whose jurisdiction the offence is committed, the officer concerned shall record the FIR and shall take suitable action as per the law.
(ii) Whenever such incident is reported to the police officer not belonging to his jurisdiction, the officer shall immediately inform the police officer concerned and also send the copy of the written complaint, if available, for further necessary action.
19 Obligation of certain persons to report about the commission of offence under the Act. –
(1) All officers of Government are hereby required and empowered to assist the police in the execution of the provisions of this Act or any rule or order made there under.
(2) All the members of village Panchayat shall be responsible for preventing the incidents of Witch Hunting at the threshold level if they have knowledge and reason to believe that any act covered under the definition of Witch Hunting is about to be, or has been, committed in the area and shall, in the case of occurrence of cases of Witch Hunting in the area or areas concerned punishable with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
20. Person convicted of an offence under Act to be disqualified form inheriting certain properties.-
A person convicted of an offence under sub-section (1) of Sec. 4 in relation to the commission of witch hunt shall be disqualified from inheriting the property of the woman in respect of whom such witch hunt has been committed.
21. Rescue of victim .-
(1) Where a Magistrate has reason to believe from information received from the police or from any other person authorized by State Government in this behalf or otherwise, that any woman has been victimized in the name of witchcraft, he may direct a police officer not below the rank of a sub-inspector to enter such place, and to remove there from such woman and produce her before him.
(2) The police officer, after removing the woman shall forthwith produce her before the Magistrate issuing the order.
22. Protective Homes or Rehabilitative Centres. –
(1) The State Government may in its discretion establish as many protective homes and rehabilitation centers under the Act as it thinks fit and such homes and centers when established shall be maintained in such manner as may be prescribed.
23. Free medical assistance to the victims –
The Government may provide free medical assistance including medicines and other supportive system to victims of witch hunt.
24. Rehabilitation grant to the victims.-
The Government, as the case may be, shall provide for rehabilitation grant to be paid to the victim of offences as defined under the Act, and, for any other offence which has not been defined in the Act but has been defined in other criminal laws, for the time being in force, in the manner prescribed in the Rules.
29. Free legal services to the aggrieved women. –
The aggrieved women shall have right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987).
25. Section 360 of the Code or the Probation of Offenders Act not to apply to persons guilty of an offence under the Act-
The Section 360 of the Code and the provisions of the Probation of Offenders Act, 1958 (20 of 1958) shall not apply to any person of the age of twenty one years and above who is found guilty of having committed an offence under this Act.
26. Section 438 of the Code not to apply to persons committing an offence under the Act.-
Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on accusation having committed an offence under this Act.
27. Application of certain provisions of the India Penal Code.-
Subject to other provisions of this Act, the provisions of Section 34, Chapter III, Chapter IV, Chapter V, Chapter V-A, Section 149 and Chapter XXIII of the India Penal Code (45 of 1860) shall, so far as may be, apply for the purposes of this Act as they apply for the purpose of the India Penal Code.
28. Act to override other laws.-
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any custom or usage or any instrument having effect.
29. Protection of action taken in good faith.-
No suit, prosecution or other legal proceedings shall lie against the Government or any officer or authority of the Government or any other person for anything which is in good faith done or intended to be done under this Act.
30. Power of Central Government to make rules.-
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) procedure for payment of the compensation to the victim as provided u/s 19;
(b) manner in which the rehabilitation grant shall be paid to victims of witch hunt u/s 28;
(c) any other matter which has to be or may be prescribed.
(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
31. Power of State Government to make rules.-
(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.
32. The Central or the State Governments may frame rules for the effective implementation of the At on the following provisions also.
(1) Draft proper guidelines for the implementation of the act;
(2) Sensitisation and training of police offices regarding the issue of witch hunting;
(3) Confidentiality during testimony of victim as well as witnesses;
(4) Proper monitoring and follow up of reported incidences;
(5) Relief and compensation for victims of witch hunting;
(6) Rehabilitation mechanisms and schemes for victims of witch hunting;
(7) Counselling services for victims of witch hunting;
(8) Education and awareness, inclusion of the issue of witch hunting in school curricula;
(9) Public awareness schemes to inform communities of the Act;
(10) Proper medical facilities and awareness and enforcement of the right to free health care for those below the poverty line;
(11) Launching of campaigns against superstition and witch-hunting practices and organizing padyatras and public awareness meetings against through combined efforts of government, administration, voluntary organizations, schools, etc, especially in regions where the menace is most rampant;
(12) Organizing Women’s groups at village level and drawing up creative plans in consultation with such groups to enhance the self-confidence and economic independence of vulnerable women in such areas.