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Maharashtra’s Law on Social Boycott

A Critical Review

The author would like to thank Kunal Shirsathe for his inputs.Anagha Ingole (recontreanagha@gmail.com) teaches at the Department of Political Science, Tripura University.

The social boycott act passed by the Government of Maharashtra is an important step in arresting the abuse of power by in-group elites. However, the possibility of legal challenge; absence of victim and witness protection, compensation and rehabilitation; and lack of a mechanism to deal with inter-caste and outlier community cases may limit the realisation of the desired goals. Further, by pegging the role of caste panchayats only to social boycott it conveniently excludes the “evolved” upper caste panchayats.

On 3 July 2017, the Government of Maharashtra published and brought into force the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. The act lists down and makes punishable by law, various forms of social boycott which are used by a group within a community to exercise compliance to, and continuation of, their power within their own caste or religious denomination. The passing of the act has been widely applauded and the chief minister himself termed it as historic.

It is, indeed, historic that the movement started only five years ago by the Andhashraddha Nirmoolan Samiti (ANIS) and supported by other actors, has borne fruit in the form of this law. There is no denying the fact that the act strips off a range of powers exercised by caste panchayats. However, the act’s sole focus on the phenomenon of social boycott, which though important, is limiting as it is not the only lever on which the power of caste panchayats is hinged. The nature of the functioning of khap panchayats in Haryana is a testimony to this.

The act’s definition of social boycott and the methods of operationalising it will lead it to cover only the caste panchayats of the lower classes and castes which are easier to identify and pin down as they come across as glaringly primeval, violent and repulsive to the modern sensibility. Identifying caste panchayats by the nature of their crimes rather than the kind of power they exercise, which can always be modified into a benign settlement with the law, is a challenge the act has receded from. This leads to a range of crimes under social boycott determining what caste panchayats are, rather than the other way round.

Though the existence of caste panchayats or gaavkis in Maharashtra is not new, the extent of their prevalence and exploitation of in-group members was first identified in 2013. This happened after the case of the honour killing of a woman from Nashik in which the role of caste panchayats was suspected. When a report in the Marathi daily Sakal stated such a possibility and gave the contact numbers of ANIS activists at the end of the report, complaints started pouring in. The ANIS soon realised that it had opened a can of worms and decided to pursue the matter. The problem as identified by the late Narendra Dabholkar was not just social boycott or other ways through which gaavkis ensured compliance, but the caste panchayats themselves. This is clear from the name he gave to the mission he began in 2013, which he called the Jaat Panchayat Moothmati Abhiyan (JMA) or the Mission for Eradication of Jaat Panchayats. The only way of doing this, he said, was to open ourselves to rational thinking in organising social relations which implied an end to granting any legitimacy to power claims by caste-based associations. The JMA organised two gatherings for the victims of jaat panchayats on 8 and 15 August 2013 at Nashik and Latur respectively. The whole state witnessed the power and influence of jaat panchayats when just after five days of the second JMA gathering Dabholkar was murdered in broad daylight in Pune. This predictably attracted a lot of attention and outrage from the media and the general public.

Need for Such Law

The ANIS decided to continue its fight against the gaavkis. Both the number and the nature of atrocities committed by the gaavkis brought to fore the ghastly picture of how caste still continues to discipline and dominate the lives of most people of the state, especially of the poor and women. Ordering killings, making women prove purity of character by publicly asking them to put their body parts through fire, ruling marriages of underage girls to their rapists, prohibiting and often breaking consent marriages outside caste, asking for proofs of consummation, closing avenues of livelihood in the village, not allowing passage on public property, not allowing children to intermingle, not allowing families to seek marriage proposals from within the community, denying medical help, monetary penalties, etc, are only some examples of the punishments delivered by these gaavkis.

The inability to conclusively identify, let alone punish, Dabholkar’s killers and the increasing number of cases that were coming to light created pressure on the government to initiate some action. ANIS was frustrated with the number of offenders that could not be booked and went unpunished due to the absence of any comprehensive law on the subject. By 2015, when no action seemed to be in the offing despite a verbal assurance by the chief minister regarding the law to abolish caste panchayats, ANIS even considered filing a contempt petition in the Bombay High Court. The court had, in October 2013 itself, directed the government to draft such a law in response to a public interest litigation filed by Ganesh Atmaram and Jaganath Waghare from Raigad who were facing ostracisation from a Koli caste panchayat. Finally in 2016, the Maharashtra Legislative Assembly passed the bill and opened it for suggestions. Though the draft received some watering down, the act finally received presidential assent this year and was enforced in July 2017 in the state.

The act summarily declares social boycott as an offence, prohibits assembly for such an act and gives the magistrate the power to stop such an assembly from convening, on receiving such information. It defines social boycott as any intra-community act that creates impediments in the observance of social or religious customs, obstructs marriages or funerals by community rites, ostracises socially or commercially, denies access to public services or places of worship, incites severing of ties, segregates children, discriminates on the basis of “morality, social acceptance, political inclination, sexuality,” etc; forces or obstructs the wearing of a particular dress or use of language or similar acts, culminating in social boycott. It also makes void all the rulings of social boycott made before the passing of the act and places the burden of proof on the accused. It defines caste panchayats as a registered or non-registered body from any community which regulates or controls personal and social behaviour and collectively resolves or decides any disputes amongst members through oral or written dictums.

Limitations and Challenges

Though the high court directive clearly stated that the state government should direct the department of social justice to draft the bill, the bill was given to the home ministry. From the very beginning, activists raised an objection to dealing with caste panchayats as a mere law and order problem. Nevertheless, the bill was drafted and passed from the home and judiciary department. This has led to the failure of integrating important aspects of how both caste and caste panchayats work, which can severely curtail the realisation of the act’s goals. Three examples can be stated in this relation.

First, a maximum number of cases arise out of the issue of inter-caste marriages. As consent is an alien, intolerable concept in almost all caste and community traditions in India, these kind of marriages lead to divisions in communities and even lead to violence, causing caste panchayats to come together to resolve them. The worst affected in these cases are women, often young women, who are forcibly separated, their unborn killed, left to raise their ostracised children by themselves, sexually exploited, abandoned or forcibly remarried. The act has no provision for special protection or compensation and rehabilitation of these victims. The act neither deals with the question of inter-caste/inter-community/inter-religious marriages clearly, nor takes a position on collective caste panchayats which are not intra-caste affairs. It must be underlined that rehabilitation and compensation to all victims of caste panchayats continues to be a consistent demand from activists working with these victims. If the cycle of exploitation is to be discontinued, addressing this issue is vital, as both economic dependence and threat of physical injury are important factors in the members’ compliance to the diktats of caste panchayats.

Second, there are certain kinds of religious creeds which may change their strain and thus, also religious practices and beliefs over time. In case some group members who do not comply are ostracised, they are treated as members of the earlier creed. In this case, this law might find itself wanting as it includes “religious creed” in its definition of community. Such a case has been reported, where the converted leader of the Tablighi panchayat defended himself, saying that the victim did not belong to his creed anymore and thus, there can be no intermarriage among the communities.

Third, in 2010, there was a much discussed case about the problems faced by the Pardhi tribe in being unable to acquire any proof of identification, including their community identity, given that acquiring any proof of identity requires a proof of residence, land records, etc. The members of the tribe protested at various levels, built their huts, performed their community practices in front of the tehsil and district offices and also, threatened to loot the offices to prove that they belonged to the Pardhi community as a last resort (raiding being considered their traditional means of livelihood). Such communities rely solely on their caste panchayats for resolving disputes. Given that something as basic as filing a first information report would require community identification in this matter, such communities largely remain outside the purview of the act, as the act makes no special provisions for them. The question of dealing with caste panchayats, thus, requires a deeper understanding of how and why they function on the ground.

It cannot be ruled out that the rationale of the government behind this could have been the legal and constitutional hurdles that have sealed the fate of such laws in the past. The Bombay Prevention of Ex-communication Act, 1949 which was pulled back after the Constitution bench was divided on the matter, is an example. The act was challenged by the leader of the Dawoodi Bohra community citing violation of Article 26(b) of the Constitution, which grants all religious denominations the right to manage their own affairs in matters of religion. However, such opinion could have been taken at a later stage, once the principles on which the draft was to be primarily based were laid down. It is this treatment of the problem, as one of mere law and order, that has led to the shift in the definition of victimhood as attached only to physical and material harm rather than also to “mental, psychological, emotional” harm—factors included in the draft bill but excluded from the act. Though the definition of social boycott which lists 15 kinds of possible offences is detailed, it is by no measure exhaustive. The exclusion of affective harm—the driving force of the power of these panchayats—from victimhood creates tremendous scope for legal (mis)interpretation, and conflict is always likely to arise between the definition of victimhood and social boycott.

Addressing some of these objections, while presenting the bill in the assembly, the chief minister stated that the question of rehabilitation will be taken care of while laying down the rules and regulations of the act. However, there are more grave objections which were not discussed. First amongst these is the protection to victims and witnesses which becomes all the more important as the act makes the crime both compoundable and bailable. In a situation where the domination of panchayat leaders extends from the realm of economic to the social sphere, it is likely that a variety of intimidation and pressure tactics will be used on the complainants. The act has also reduced the maximum punishment from seven years imprisonment and five lakhs in fine or both as proposed in the draft bill, to up to three years of imprisonment and one lakh in fine or both. The provision of speedy trial within six months in the draft bill has also been removed from the act. Given the hijack of the Tanta Mukti Yojana at the village level by caste and political elite and the inability of an overburdened judicial set-up to dispense cases in time, the removal of speedy trial provision might prove detrimental to the victims.

In the first case filed under the new law in Kondhwa, Pune, by the 40 ostracised members of the Madewar Telugu Parit community, it has been reported that the police themselves initially tried to discourage the members from filing a complaint. They instead tried to convince them to not return to a community which rejected them. They also asked them to produce proof that they were ostracised. It was only after the activists showed the government resolution to the police that the case was lodged. If this is the state of affairs in Pune, it is obvious that filing such cases in smaller police stations and covering the distance from the police station to the court is bound to be a herculean task for the victims. In such a situation of administrative apathy and alignment of power hierarchy on their side, the caste panchayats might continue to thrive despite the act.

Limits of Progressivism

It is needless to say that caste panchayats exist in all castes whether in the name of gaavkis and panchayats in the villages or in the more sophisticated and regularised forms of the mahasabhas, sanghas, mandals, guilds, or rakshak dals, of the upper castes in the cities. The latter exercise control over the larger community capital in the form of religious buildings, educational institutions and hospitals; whose leadership and membership requires caste puritanism; they also control employment avenues and imply covert methods of regulating social behaviour. From the tenor of the new law it is clear that these are not under the scanner. This also reinforces the point that though respite from the horrors of social boycott is necessary, this does not guarantee respite from the ghost of caste/community based panchayats.

Nevertheless, this act is the first, and an important, step in pointing out the problems with parallel systems of justice dispensation that derive their authority from tradition, respect for “public” (mob) sentiment or the autonomy of community logic. Such systems abound in the state and the country—which makes it justifiable for groups to assume the responsibility, nay duty, to take up the flag of protection and conservation of tradition. In a democracy, no caste, community, religion or tribe can command such powers over individuals of their own group or on others. It is this principle that should carve our definition of group identity-based exploitation and not a list of crimes that comfortably box identifiable practices. In a “progressive” state like Maharashtra, we still have many more such boycotts to be made criminal—be they intra-caste, inter-caste or inter-religious. This act, nevertheless, has the potential to be a stepping stone to a broader and more inclusive anti-discrimination law.

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