Amidst the pandemonium arisen due to the notoriety of the COVID–19 virus, we cannot afford to be lost on the significance of how there continue to be deep-rooted pernicious influences that plague the lesser privileged strata of Indian and Nepalese societies. “Witch hunting” is one of such numerous influences and has persisted through the centuries, establishing itself as one of the most atrocious forms of violence against women. At a time when one would expect a massive downfall in the perpetuation of such practices due to the advancement of society and technology making it possible to communicate and convey grievances more effectively, the outcome is far too underwhelming. “Witch hunting” continues to be a vicious trend, claiming the lives of vulnerable women and ostracizing those, who are fortunate enough to evade the predatory fangs of the accusers but unfortunate to not have much to live for.

With respect to the Indian context, the practice has been able to sustain itself and is rampant in some states. This has primarily been possible due to the highly patriarchal and superstitious beliefs internalized within the societal structure of the rural areas. The dynamics of gender hegemony prevalent at the ground level render it near impossible to provide women with significance similar to that of men. In order to counteract the systematic oppression of women, an amendment in the Indian Succession Act was brought about in 2005, which sought to grant equal inheritance rights to women. Pursuant to the amendment, women were able to assert their claim for a share in the property of the deceased and were therefore economically well-off and self-sustaining. However, as absurd as it might sound, the implications of the amendment might have made life more arduous for some rural women.

Widows, who are generally the victims of the spiteful practice of “Witch hunting,” are entitled to a share in their late husband’s property. The fact that a widow acquires a relative amount of economic prowess by virtue of the property that she has inherited, raises the eyebrows of a number of envious men, who themselves do not enjoy such resources at their disposal and are of the belief that the handling of property is not the affair of a woman. Even male relatives, who are deprived of a share due to the amended inheritance laws, prove to be a dreadful ingredient in the ghastly tale of horror that typically ensues. Further, the land-grabbing mafias, who would profit from the death or departure of the “witch” as they could now sell off the land, also contribute towards the aggravation of the predicament faced by these hapless women. Therefore, it becomes clearly evident that the dominant causes behind the “Witch hunting” are embedded in either monetary interests or pertain to the inability of the power-deprived men to accept the higher economic or social status of a woman.

As per the National Crime Records Bureau’s (NCRB) data, states such as Jharkhand, Rajasthan, and Bihar have proved to be the more contentious and problematic areas, where the practice has evolved into a major concern. However, despite the enactment of the Anti Witchcraft Act in Jharkhand in 2001, or the Prevention of Witch Practices Act in 1999 in Bihar, there does not seem to be much respite for the subjugated. Bihar has been unable to rid itself of “Witch hunting” despite the imposition of a relevant legislation there, as can be shown from the incidents that transpired in Muzaffarpur in the month of May. As reported by PTI, a mob was responsible for three women being beaten up, having their heads shaven, and being compelled to drink urine, all because they were suspected to be witches. Further, in Rajasthan, there are numerous cases, revolving around the violation of Section 3 & 4 of the Rajasthan Prevention of Witch Hunting Act of 2015, that are still pending in the courts, demonstrating the failure of the authorities to deliver. Also, if we were to scrutinize, for instance, the Act passed in Jharkhand, the provisions within the Act stipulate that the punishment for indulging in “Witch-hunting” is a fine of Rs 1,000-2,000 or imprisonment of 3 months to 1 year or both. These meager penalties for such an appalling violation is a direct indication of how the practice has still not been eradicated, since the violators are not deterred by these petty consequences. As a result, the persecution of these women remains unfettered.

The arguments against India’s preparedness and willingness to take on “Witch hunting” are also buttressed by the inefficacy of the State laws, along with a lack of a Central legislation that would suggest that the Government is taking an unyielding stand against the practice. Until these gaping flaws are rectified, there does not seem to be much hope for the alleviation of suffering for those entangled in this callous web.

Similarly, the Nepalese women too, endure the brunt of this disdainful practice. A country which has still failed to overcome the orthodox views regarding their status and the respect that should be accorded to them has led to women in Nepal facing inequality and discrimination for decades, with equal access to resources and power being elusive. The caste and class system is heavily ingrained in Nepalese ideologies and reveals itself as a major factor contributing towards the privileged classes leading the charge in “Witch hunts.” Inevitably, it is the women belonging to the “lower” castes and marginalized groups towards whom the accusatory remarks of being a “Witch” are thrown at. Further, the ignorant populous and the Jhakris (“Witch Doctors”) add to the relentless suppression of those accused, stifling any chances of there being some relief for the women being hunted down.

There exists a nationwide legislation, criminalizing the barbaric practice of “Witch hunting,” adopted in 2004 in the form of Section 168 (2) of the Muluki Ain (Civil Code of Nepal). The provision stipulates that the perpetrator of such an act shall be punishable with ten years of rigorous punishment, along with a fine of Rs. 100,000. However, while the aforesaid penalties might seem adequate to deter any potential violator, there exists a whole separate pool of challenges regarding the implementation and effectiveness of the law.

The foremost and extremely pertinent cause of worry revolves around the ignorance and lack of awareness of the victims with respect to what approach for recourse they can undertake if they have been harassed. These victims are oblivious of the legal provisions and institutions that can prove to be instrumental in seeking justice. Further, the law enforcement agencies and police officers are themselves embroiled in these problematic beliefs and subsequently, often choose to ignore instances of “Witch hunting.” Resultantly, the gross under-reporting of cases where women are being harassed is bolstered. In addition, on various counts, victims are unable to accumulate the resources necessary to undertake all the legal steps and are also thwarted from achieving speedy justice due to the tardy process that the legal procedure mandates, thereby causing the victims to not raise their grievances in the first place. Thus, the majority of the cases are unreported. Also, according to the Human Right Watch World Report 2020, the enforcement of Anti-Witch Hunt Act in Nepal remains weak and especially targets the women from minority communities. The Report also discusses the legal lacunae and lack of political will that contribute to these superstitious beliefs entrenched in Nepalese thinking. In view of these problems in the legal mechanisms, there arises an urgent requirement to address the drawbacks before the rancorous practice of “Witch hunting” gains more stead.

As can be evinced from above, both of these countries possess a certain degree of cultural congruence between each other, and face a similar challenge. While the penal specifications for the respective country differ from the other, there is a sense of commonality with respect to why the practice has subsisted without being curbed, viz. the inefficacy of the law. However, it would be imprudent to solely fault the relevant authorities for not being vigilant enough, for law can truly impress and affect only if the people choose to imbibe it. In order to adopt the law, there needs to be a lucid comprehension behind the rationale of the law itself, something that the rural communities in both of these countries are mostly incapable of due to the sheer lack of education that has been imparted to them. The Governments tend to overlook such significant factors and remain illusioned by the idea that establishing certain laws will suffice, without paying much heed to the ground reality. There are a plethora of options at the disposal of the Governments that they can undertake, but if they opt to maintain status quo and let the inadequacy of anti ‘Witch hunting’ laws persist, then it shall be rest assured that the marginalized minorities in these countries will keep enduring the various kinds of harassment for the foreseeable future.

Viraaj Gaur is a second year student at NALSAR University of law in Hyderabad, India. He is interested in law reforms pertaining to human rights.

Laabhesh Thapa is a second year student at NALSAR University of Law in Hyderabad, India. He is interested in human rights, environmental law, and immigration law.

Suggested citation: Viraaj Gaur and Laabhesh Thapa, Hunting Down the Witchcraft: Legal Inadequacy in India & Nepal, JURIST – Student Commentary, June 17, 2020, https://www.jurist.org/commentary/2020/06/gaur-thapa-witchcraft-nepal-india/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org