NEW DELHI -- For centuries now, village councils in India have doled out terrible retribution against those who defy the social norms of their communities. Maharashtra has become the first state to pass a law which says that with the exception of the courts, no one can act as judge, jury and executioner.
On Wednesday, a day before the 125th birth anniversary of Dalit icon B.R. Ambedkar, the state legislature unanimously outlawed the social boycott of individuals by any person or any extra-judicial group in Maharashtra.
This is the first serious attempt by a state to reign in these groups, which go by different names such as "Caste Panchayat" in Maharashtra and "Khap Panchayat" in Haryana. They wield immense power in communities which are governed by social codes rather than the law of the land. In the rural hinterlands, the decrees of village elders, who are often members of these groups, are taken more seriously than court rulings.
While recognizing the challenge of implementing the law effectively, human rights activists in Maharashtra are rejoicing at its passage, and they give due credit to the Bharatiya Janata Party-led government in the state for working with civil society to get the job done.
"If executed properly, this law has the capacity to change the fabric of society. It is a renaissance and a recognition of individualism," said Mukta Dabholkar, human rights activist and daughter of rationalist Narendra Dabholkar.
After waging a long struggle to get superstition and black magic outlawed in Maharashtra, Dabholkar was just a few months into the fight against caste panchayats, when he was shot dead by two men in August 2013. “He used to say caste is the biggest superstition in this country. This was a big part of his life,” his daughter told HuffPost India.
While working together on this movement, Dabholkar said that they discovered how “tools” like excommunication and boycott were used not out of any conviction or desire to uphold tradition, but out of vested interests and the desire by some to control others. “We saw how machinery of caste operates to keep itself alive," she said. "It is like politics, you control people, you control power."
It is a renaissance and a recognition of individualism.
Maharashtra has seen some appalling instances of social boycott involving people from all different backgrounds. There was the famous case of the mountaineer who conquered Mount Everest, but was ostracized in his village because his wife did not wear a bindi and mangalsutra. In Osmanabad, Dalit families were chased out of their village because they played songs dedicated to Babasaheb Ambedkar
Now, anyone who indulges in social boycott will face three years in jail and a fine Rs.1 Lakh, which can be awarded partly or fully to those who suffer the ordeal.
“It was a long struggle. Chief Minister Devendra Fadnavis should be congratulated for the grit and political tenacity he has shown," said Irfan Engineer, who heads the Mumbai-based Centre for Study of Society and Secularism.
Engineer is also the son of Asghar Ali Engineer, who led the reform movement within the Dawoodi Bohra, a small sect of Shia Muslims based in Mumbai.
The boycott which his father suffered was so severe that he could not find a place to bury his mother because the graveyard was closed to him, and he was buried in a graveyard for Sunni Muslims in 2013.
Chief Minister Devendra Fadnavis should be congratulated for his grit and political tenacity.
It Started With The Bohras
While the anti-boycott movement picked up just a few months before Dabholkar was killed, the law isn’t entirely without precedent.
In 1949, Home Minister of Bombay Province Morarji Desai got the Legislative Assembly to pass the Prevention of Excommunication Act, which was aimed at protecting reformist members of the Muslim-Bohra community, who were ostracized by the then High Priest, and denied access to mosques and graveyards.
While the Bombay High Court upheld the law on the grounds of religious freedom, it was struck down by the Supreme Court in 1961. The apex court saw merit in the High Priest’s argument that he must have some control to prevent dissidence and anarchy, and ruled that invalidating excommunication on any grounds also violated the free practice of religion.
Then, excommunicated members of the Bohra community approached the political reformist Jayprakash Narayan, who helped set up the Justice Narendra Nathwani Commission, but later dissociated himself with it. In 1979, the Nathwani Commission recommended that excommunication in the Bohra community should be made illegal.
Four decades on, Maharashtra has a law that outlaws boycott in all communities.
Instead of letting this moment pass, Krishna Chandgude, a human rights activist who was deeply involved in the anti-boycott movement, wants the rest of the country to follow the example set by Maharashtra.
“Khap Panchayats, Caste Panchayats, whatever you call it. It is a parallel judiciary which weakens the Constitution,” he said.
It is a parallel judiciary which weakens the Constitution.
Challenges
Activists say that the Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, is quite comprehensive but the real test will be its implementation.
The Act requires the appointment special officers who will detect social boycott, and help the police bring the culprits to justice. Activists, however, are worried that the power-wielding village elders are likely to influence or bribe state officials, which is usually the way things go in India.
For this reason, Dabholkar is worried that social boycott is a bailable offense under the Act.
For any chance of effective enforcement, experts say that human rights activists will have to work closely with state officials to inform people about the law. They will have to take the lead in convincing victims and survivors of a boycott to speak out. This can be an incredibly dangerous proposition which requires activists to build trust before someone agrees to open up.
Another big challenge will be proving social boycott in a court of law because many of these situations involve oral directions -- nothing is written down or recorded. The police could find it incredibly hard to find evidence of premeditated boycott unless a member from inside the community speak out.
It is rare for people to speak out against their own communities.
“To show that there is concerted action is difficult,” said Engineer. “It will be a huge effort to get convictions in court. But even if there is one conviction it will drive fear in the minds of people."
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