The Maharashtra Anti-Superstition Act

**Shreedhar S Joshi

Introduction

हैरान हूँ इस बात पे, तुम कौन हो, क्या हो?

हाथ आओ तो बुत, हाथ ना आओ तो ख़ुदा हो…

I am astonished by the thought of who You are, what You are
If I can grasp You, are You an idol, but if not, then You are God…

Naz Khialvi

The supernatural, the divine is a mystery to human intelligence. But for faith, there is no doubt, there is acceptance. Every religion traces its roots to this faith in something beyond human comprehension, which manifests itself in myriad ways, and wields significant influence on society. 

However, with the growth of science and reason, faith in some of its forms is deemed excessive. It is called ‘superstition,’ which is considered harmful to society by its rationalists and reformers. Therefore, efforts are made to eradicate it.

Maharashtra has a long tradition of such reformers and movements led by them to rid society of superstitions and the resultant social evils. One of such reformers was Dr Narendra Dabholkar, who founded the Maharashtra Andhashraddha Nirmoolan Samiti (MANS) and campaigned extensively on this issue. He was supported by like-minded personalities like Dr. Jayant Narlikar. The Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 (hereinafter referred to as “the Act”) was born from the womb of these efforts. The bill was originally drafted by the MANS under Dr Dabholkar himself. However, it was brought into effect as an ordinance only after significant uproar following Dr Dabholkar’s assassination in 2013. Later, it was passed by the legislature, after significant amendments.

The long title of the Act declares it to be,

“An Act to bring social awakening and awareness in the society and to create a healthy and safe social environment with a view to protect the common people in the society against the evil and sinister practices thriving on ignorance…”

With this end in view, Section (S.) 3 of the Act makes indulging in any of the practices mentioned in the Schedule to the Act a cognizable and non-bailable offence, with the punishment ranging from imprisonment for 6 months to 7 years, and fine ranging from 5000 to 50000 rupees. It also establishes the post of a vigilance officer for one or more police stations for detecting and prosecuting offences under the Act, and ensuring that the purpose of the Act is served.

The Schedule to the Act includes practices like various kinds of physical abuse under the pretext of expelling a ghost [Entry (1)], the display of ‘miracles’ by persons for earning money [Entry (2)], human sacrifice [Entry (4)], substituting charms and totems for medicine in the case of animal/insect bite [Entry (9)] and keeping sexual relations with a person by deceiving them through false stories ascribing supernatural insight or powers [Entry (10)].

At the same time, S.12, a savings clause, excludes several traditional practices like astrology advice, dissemination of information about miracles performed by past saints and religious festivals from the purview of the Act.

The question that arises here is, is there a difference significant enough between the practices enumerated in the Schedule and S. 12 to deem one set illegal and the other legal? Are the two categories of people thus created by the Act, one to be punished and the other to be protected, reasonably different from each other?

This question assumes significance in the light of Article (Art.) 14 of the Constitution of India, which permits reasonable classification between persons, but abhors arbitrary divisions. A law that runs afoul of the principles of equality before the law and equal protection of the law, which the Article embodies, is liable to be struck down as unconstitutional.

This article argues that the Act, in its current form, fails to make a reasonable classification between people practising the rites listed in the Schedule and those listed in S. 12. A more rational basis for the classification is thus called for and suggested, along with other measures for achieving the object of the Act.

Article 14 of the Constitution and reasonable classification

Art. 14 of the Indian Constitution reads, 

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

A bare reading of this provision, which is the foundation of the Fundamental Right to Equality, establishes that the state (as defined in Art. 12 of the Constitution) is obligated to ensure that the law is the same for everyone, without any fear or favour. It must also ensure that the legislations it promulgates do not discriminate unfairly between different sections of society.

But this does not mean that the state lacks the power to create classifications between persons. The provision only mandates that the classification must be reasonable. The Supreme Court has laid down two tests for deciding whether a classification is reasonable under Art. 14 in the case of  State of W.B. v. Anwar Ali Sarkar:

1. The classification must be founded on an intelligible differentia that distinguishes those grouped together from the rest of the population, and
2. The differentia must have a rational relation to the object sought to be achieved by the law in question.

A statute or provision (rule) creating a classification that fails these tests liable to be struck down for violating Art. 14. However, as the Court cautioned in Mohd. Usman v. State of A.P., while considering this question of validity, the overall effect of the rule must be considered, and not exceptional cases. Also, as held in Kedar Nath v. State of W.B., the rule need not be scientifically perfect or logically complete. The Court has underscored, in Kale v. UOI,  move beyond the classification and look at the purpose of the rule, and see if it reeks of “palpable arbitrariness” in the context of the times in which it was enacted.

While we see reasonable classification being the main element in the jurisprudence of Art.14 in earlier cases, the scope of Art.14 has expanded significantly over the years. Its reach now extends to the much broader notion of reasonability in state action where the object of the law itself is discriminatory, as laid down in Subramanian Swamy v. CBI.

The Schedule v. S.12 of the Act: whither reasonableness?

Now, with this jurisprudence in the background, let us see if the Act manages to create a reasonable classification between people engaging in the practices enumerated in the Schedule vis-à-vis those engaging in the practices listed in S.12.

A glance at the Schedule to the Act reveals that most acts contained therein involve claims of supernatural powers, physical violence in the name of supernatural beings, threats to cause harm through the supernatural and/or gaining benefits through such deeds.

On the other hand, a look at S.12 makes it evident that a majority of the practices covered therein are traditionally observed festivals, methods of prayer and other common rites.

At first blush, this would make it seem as though the two categories are completely different, and thus the classification is reasonable. However, a closer look reveals a different picture.

Let us take Entry (2) in the Schedule. It covers the “display of so-called miracles by a person and thereby earning money; and to deceive, defraud and terrorise people by propagation and circulation of so- called miracles.”

And for comparison, let us take S.12(1)(3), which protects “…[stating] about the miracles of deceased saints, propagation, publicity and circulation of the same and the propagation, publicity, and distribution of the literature about the miracles of the religious preachers which do not cause physical injury or financial loss.”

While the former covers present-day humans and involves the intention to deceive, defraud and terrorise, the latter involves dissemination of information about deceased humans, without clearly mentioning the requisite mental element. 

Why this distinction between the living and the dead? The living are going to die someday. These provisions make it seem as though acts that are not miracles today would become miracles after those performing them die, because the intention behind the performing of miracles does not matter after the performer’s death. The only restriction thereafter is physical injury or financial loss. Now, who is to define these, especially “financial loss”? One could argue that running a “mutt/math” in a deceased saint’s name, to which devotees make offerings, also causes financial loss to the devotees. And in both cases, proving fraud or deceit is difficult. Also, why should claiming supernatural powers to get monetary benefit stand on a different footing from claiming that someone else had that power, to get that benefit in their name?

This is not the only instance. Entry (4) in the Schedule is about “Doing any inhuman, evil and aghori act and black magic; in search of precious things, bounty, and water resources or for similar reasons…” (italics in original)

And, S.12(1)(7) protects “The advice in regard to vastushastra, advice by Joshi-Jyotishi, Nandibailwale Jyotishi and other astrologers and in regard to source of ground water.” (italics in original)

Here, the problem is even more pronounced. The Schedule entry explicitly mentions the intention to search for water resources, and so does the sub-section. So, do other water resources stand on such a different footing from groundwater that using unscientific/non-scientific methods to search for one is illegal, but you can freely do so for the other? The use of “inhuman…magic” is not helpful either, because these words have been defined in S.2(b) as committing any act mentioned or described in the Schedule! 

These issues may seem trivial, but they are not, because indulging in any of the practices enumerated in the Schedule is a cognizable and non-bailable offence, i.e., one can be arrested without a warrant for it, and bail is a matter of judicial discretion. It also carries a maximum penalty of imprisonment for 7 years and fine of 5000 rupees. The personal liberty of people is at stake, which cannot be taken away except according to reasonable procedure established by law under Art.21 of the Constitution.

But the worst part is yet to come. S.12(1)(8) allows the government to exclude even more practices from the purview of the Act by way of notification. Even though the notification has to be laid before the state legislature under S.12(2), the delays in the passage of the Act do not inspire confidence in the political will possessed by it.

Considering all this, can we say that the scheme of the Act reveals an intelligible differentia between people engaging in one category of practices as opposed to the other? It is difficult to answer in the affirmative. Even if we allow the legislature the leeway of not requiring scientific precision in classification given in the Kedar Nath case, the problems are too egregious to ignore here. There is no reasonable difference at all on some points, an issue that was held to cause a violation of Art.14 in cases like Karimbil Kunhikoman v. State of Kerala. 

Then, the stated object of the Act is, inter alia, “to bring social awakening and awareness in the society.” Do these categorisations have a reasonable nexus with that object? In other words, does allowing the use of unscientific/non-scientific methods to find groundwater and prohibiting the same for other water sources bring about greater awareness in society? The answer is obvious.

So, the Act, as it stands today, is at serious risk of being invalidated for being violative of Art.14. Fortunately in this sense, it has seldom been used, and even the rules for it are yet to be notified, due to which it has escaped scrutiny for the most part yet.

The solution

The provisions of the Act betray a preference for political correctness over legal precision and constitutional morality. The mention of prayers, varis etc in S.12 reveals a fear of the religious. This is the same mistake India committed in State of Bombay v. Narasu Appa Mali, when personal laws were placed outside the purview of constitutional scrutiny by the judiciary. In the opinion of the judiciary itself, this created a legal hurdle in social reform later.

So, what can be done? To save this law from unconstitutionality, a rational basis for differentiation must be introduced, which would have a logical nexus with its aim. While the Act tries to do this in some instances by using the phrase “physical injury or financial loss,” we have seen how vague it is. However, this can be built upon. The basis of the new classification could be consent. In other words, if any practice causes any form of hurt (within the meaning of the BNS) or financial loss to a person without their consent, or when they are incapable of giving consent, that practice would be invalidated and the perpetrator punished, irrespective of how old or entrenched the practice is. This would cover instances of witch-hunting, human sacrifice, deception by “godmen” and similar crimes. This would be one part of the Act.

The second part would be the promotion of rational thought.  A private member’s bill was introduced in the Lok Sabha by Shri Benny Behanan on 26 July 2024, which dealt with the promotion of rationality among the people. The bill provides for the creation of a policy for the promotion of rational thought by both State governments and the Central government, as well as the establishment of a Board for the Promotion of Rational Thought by the Central government. This can be used as a template. This part of the Act would directly bring the “social awakening” that the long title of the Act talks about. 

In any case, Art.51A(h) declares it to be the Fundamental Duty of every Indian citizen “to develop the scientific temper, humanism and the spirit of inquiry and reform.” By promoting rational thought, the Act would be enabling the fulfilment of this duty. It would also protect citizens from the influence of fundamentalism, thus helping heal the wounds inflicted upon the collective consciousness of the people by communalism.

Conclusion

Thus, we have seen that in its present form, the Act may run afoul of the constitutional mandate imposed by Art.14. However, the adoption of more concrete criteria for classification, along with provisions for the promotion of rationality, may save it from unconstitutionality. 

This Act is the result of efforts spanning several decades. Dr Dabholkar had to lay down his life for it. It would be a tragedy, and an insult to his memory, if it were to fail to achieve its aim of a rational society because of political cowardice.

**Shreedhar S Joshi is a 2nd year law student at Symbiosis Law School, Pune. He was an intern with Vidhi Maharashtra.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.