A first reading of both the bills gives one the feeling that the new draft has included a lot more people in its purview and has also made mild, some of the provisions of the older draft. The March draft uses the words to protect the poor and ignorant people in the society Against blind faith, ignorance and customs born out of blind faith in the name of god...black magic by so called god’s men. The December draft however uses the terminology of application to common people customs thriving on ignorance and completely removes the usage of the words blind faith...in the name of God and so called God’s men. It is thus quite clear that the present bill recognizes the fact that it is not just the poor and the ignorant who can be victims of tantriks and babas but also the people of the upper classes that may be affected. It also wishes to avoid opposition over the usage of the words God’s men and in the name of God because practices and rituals practiced in the name of God may be an expression of faith to some.
Short Title, Extent and Commencement:
The March draft of the bill was called the Maharashtra Eradication of Black Magic and Evil Practices and Customs Act, 2005 whereas, the final draft is called the Maharashtra Eradication of Black Magic and Evil and aghori Practices Act, 2005.
The word Customs has been removed from the title and the word aghori has been inserted possibly because of the difficulty in defining the word Custom as would cater to the needs of this bill.
The definition clause has been severely shortened in the December bill. The earlier bill included definitions of Black Magic. Magical remedy. However, this has now all been covered in one clause. All the words have the same meaning as they have been defined in The Drugs and Magic Remedies (objectionable advertisements) Act, 1954 and the criminal procedure code, unless, they have been expressly defined in the bill. However, there are still certain terms such as Aghori, jaran-maran, buvabaaji, devi mata or dev devaski which find no definition in the Bill.
A rather large definition had been provided for in the March bill for practice of Black Magic or blind faith. It included practice by a person or through another by claiming to possess supernatural powers or divine powers or power of the spirit for treatment or for curing or for healing physical and mental ailments thereby causing material or financial loss to a human being. This definition would have thus included other varied practices such as Voodoo, Wicca and Reiki. This however has completely been removed from the present bill. This is probably one of the biggest reasons why the present bill was labeled as anti-hindu, because it does not seem to cover the practices of other religions such as Islam and Christianity.
A noticeable change is that of the inclusion of Doctors and medical practitioners in the present bill. The earlier bill expressly excluded this class of people. This would have given a license to doctors to practice black magic; hence it has rightly been included.
Registered medical practitioner as defined under the Drugs and Magic Remedies Act 1954, means any person-(i) who holds a qualification granted by an authority specified in, or notified under Section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916) specified in the Schedules to the Indian Medical Council Act 1956 (102 of 1956); or
(ii) who is entitled to be registered as a medical practitioner under any law for the time being in force ;in any State to which this Act extends relating to the registration of medical practitioner;
Prohibition of Black Magic:Both the bills prohibit the promotion, propagation and the practice of Black Magic. The December Bill also prohibits the promotion, practice and propagation of aghori practices. This also included people who abet or attempt to commit any act punishable under this Act.
The March Bill provided that any person who contravenes the provisions of the Act would be punishable with a term extending to seven years or with a fine extending to fifty thousand rupees or with both. The revised version of the bill however provides a minimum sentence of six months extending to seven months along with a fine, the minimum limit of which is provided at fifty thousand rupees. Hence the amended bill comprehensively necessitates the imposition of both imprisonment and fine.
Jurisdiction to try offences:Both bills declare the offences punishable under the Act as cognizable and non-bailable. No court inferior to that of a Metropolitan Magistrate or a Magistrate of the First Class is permitted to try any offence under the Act
Offences by companies:Both bills provide that if any offence is committed by a company then every person in charge of and responsible to the company at the time of commission of the offence for the conduct of its business would be deemed guilty. It however, expressly excludes people who did not have knowledge of the commission or people who had exercised all diligence to prevent its commission. It also provides that if such an act is committed with the consent or due to the neglect of any director or manager or secretary or any other officer of the company who is responsible for the exercise of due care then such a person would also be deemed to be guilty under the Act.
A separate definition has been provided for a company under both the bills which includes firms, an association of persons or body of individuals, whether incorporated or not. Where the March Bill includes trusts in the definition of a company, the December bill does not. The reason for the exclusion of the same is unclear.
Vigilance officer:There is a slight difference in the manner of defining the vigilance officer in both the bills. The March draft provided that the vigilance officer, who would be one or more police officers of the rank of an inspector of Police, would be appointed for the whole State or such part of the State as may be specified. However, the December draft now changes this to one or more police officers for one or more police stations as may be specified. The December bill thus does away with the ambiguity of appointed police officers for parts of the State.
Where the duties of the Vigilance officer are concerned, most of the duties remain the same. The earlier bill however, empowered the officer to detect and prevent the contravention of the Act and to report cases to the nearest police station within his jurisdiction. However, the present bill lays a greater duty on the vigilance officer because it requires him to take quick and speedy action in case a complaint is filed at the police station by a victim. It also requires him to give necessary advice, guidance and help to the concerned police station. The rest of the duties such as collection of evidence, performance of other duties as notified from time to time remain the same under both the bills.
The March bill however, provided that the Vigilance officer shall associate himself with the members of recognized organizations within the area of his jurisdiction and co-ordinate with such organizations. It further goes on to state what these recognized organizations would be and what their duties would be. The bill stated that any social organization which had been established and registered for not less than two years under the provisions of the Bombay trusts Act, 1950 or the societies registration Act, 1860 may apply to the state government for recognition. It further provided that the government may accord such recognition after due enquiries. It appears that the Andhasharadha Samiti, being an organization which would fit in this category wanted to be at the forefront of such activities while drafting the bill. Being a recognized organization, the Vigilance officer would then be forced to work in co-ordination with the organization by virtue of section 6(3). This provision has been deleted from the December Bill.
Power of Entry, Search etc:
The Act will give tremendous powers to the Vigilance officer as he will have the power to enter and search any premises in which he has reason to believe that an offence has been or is being committed. He will also have the power to seize any instruments or material or advertisements which he has reason to believe were being used for the commission of the crime. It also gives him the power to seize any other objects which according to him would help prove the crime. The provisions of the criminal procedure code would apply to any search or seizure under the Act as would apply to any search or seizure made under the authority of the warrant issued under section 94 of the Criminal Procedure Code.
Protection of action taken in good faith:Common to both bills
The provisions of section 159 and 160 of the Bombay Police Act, 1951 shall apply to acts done in good faith by the Vigilance Officer as if he were a police officer within the meaning of that Act.
Application of the provisions of the Code:Common to both bills
The provisions of the Code shall apply to the investigation and trial of the offences under this Act. Both the bills also go on to state that this Act shall be in addition to and not in derogation of any other law for the time being in force.
Publication of the fact of conviction:Both bills make provisions for convicting courts to order the publication of the name and the place of residence of the person convicted in the local newspaper where the offence has been committed. No such publication however, may be allowed until the appeal has finally been disposed of.
Both bills also make provisions for the making of rules to carry out the purposes of the Act by notification in the official gazette. The procedure for the making, modification and the annulment of such rules has also been provided for under the Bill.
Power to remove difficulty:
This is an extremely ambiguous provision that had been put forth in the bill of March which was removed in the new bill. It provides that in case the State government encounters any difficulty in giving effect to the provisions of the Act then the Government may take such steps by notification in the official gazette as it may deem necessary to remove such difficulty. Such an order, however, could not be given before the passing of two years of the commencement of the Act.
The bill of December 2005 provides for a provision which clarifies that the Act would not apply to acts involving religious rites and rituals which do not affect any person mentally or physically. This has been done in order to avoid a religious uproar. It at the same time however, also creates certain ambiguities as many acts can be committed under the guise of being a religious act or a religious ritual.
The schedule to the bill of March specified the acts which were considered as offences. This has almost completely been changed in the new bill and very little of the old bill has been retained. Whereas the first bill listed out 27 practices, the new bill lists only 12.
The schedule to the March Bill included:
1) Under the pretext of expelling the ghost, assaulting by tying a person with rope or chain, beating by stick or whip, to make the person drink footwear soaked water, giving chili smoke, hanging a person to the roof, fixing him with rope or by hair or plucking his hair causing pain by way of touching heated object to organs or body of a person, forcing a person to perform a sexual act in the open, practicing aghori acts by chanting mantras, putting urine or human excretion forcibly in the mouth of a person.
This clause has completely been retained. Only the words by chanting mantras have been removed from the new bill in order to avoid religious opposition. Chanting mantras need not necessarily be in connection of aghori practices and is also used for religious practices and to connect it with aghori would have caused religious uproar.
2) Display of so called miracles by trying to create an impression of existence of the things beyond or contrary to proven scientific rules and to deceive, cheat or terrorize any person by propagation and circulation of such practices. The wording of this section has completely been changed and it now reads as follows:
Display of so called miracles by a person and thereby earning money and to deceive, defraud and terrorize people by propagation and circulation of so called miracles.
The intention of the legislators here appears to be that it is not the belief of the people that should be attacked but only the people who want to derive monetary gain out of display of miracles who should be attacked. Even God is beyond scientific proof but the impression of His existence cannot be challenged. Beliefs such as these cannot be challenged under the guise of deception or terrorism. Another question which arises is would magicians now be allowed to display their magic for entertaining people. Although magic is not used always to terrorize people, it does have that effect during the performance of certain tricks.
3) Doing any inhuman act for search of precious things, bounty, water resource in the form of karni, bhanmati and making or trying to make human sacrifice by making jaran-maran, buvabaaji, devi mata or dev devaski.
The following clause has been more appropriately drafted in the latest bill and it now reads as follows: Doing any inhuman act in search of precious things, bounty, water resource or for similar reasons in the name of karni, bhanamati and making or trying to make human sacrifice in the name of jaran-maran, or dev-devaski or to advice, instigate or encourage committing of such inhuman acts.
The words buvabaaji and devi mata have been excluded and the other words highlighted have been included. Thus not only the act itself but also the instigation or the propagation of the act would comprise the offence.
4) In case of dog bite, knowingly committing the act of giving unscientific treatment of mantra tantra, gandadora and herbs, etc. to a person infected with rabies instead of modern medical treatment or preventing him from accepting the same.
Only a part of this clause has been retained and other bites such as those of a scorpion and a snake have been included. A separate clause had been put for snake bites in the earlier bill. This has now been included in the same clause. Thus if a person is bitten by any of these and such a person is treated by mantra tantra and ganda dora, it would be an offence. The usage of herbs has been excluded. It is a proven fact that herbs have medicinal value and hence its usage has been allowed under the present bill unlike its prohibition in the earlier one.
5) Piercing needle, and nails or other such objects in the arm, tongue, chicks or any other part of the body, pricking pointed objects in the body, whipping oneself, to bang oneself on the wall of temple with intention of fulfilling the prayer made before God or commitment, cutting oneself with a sharp instrument on one’s forehead and on any other part of the body or to inflict self injury or committing any act in public place which causes pain to normal human being in the name of religious customs or traditions. This provision has completely been removed from the present bill.
These acts need not be committed in religious faith. People pierce their tongues even in the name of fashion. Again, a practice which may not make sense to a person may make sense to another because he has faith in it. Hence, such exhaustive provisions cannot be put into the Bill.
6) Defrauding people, in the name of God and faith to have illicit sexual relationship with women or men either natural or unnatural, with or without consent of the person involved.
This provision has been deleted from the present bill because these acts have already been declared to be illegal under the Indian Penal Code and hence they are not necessary.
Instead, the following provisions have been included:
To create an impression that oneself is having special supernatural powers, incarnation of another person or holy spirit, or that the devotee was his wife, husband or paramour in past birth thereby indulging in sexual activity with such person.
To keep sexual relations with a woman who is unable to conceive assuring her of motherhood through supernatural powers.
7) Create or to propagate of inviting spirit of God or Goddess through any person as a medium. This has been removed from the present bill and the following has been included:
To create an impression by declaring that a divine spirit has influenced one’s body or that a person has possessed such divine spirit and thereby create fear in the mind of others or to threaten others of evil consequences for not following the advice of such person.
This provision makes clear that it is not merely the practice of inviting a spirit that is causing harm but the fact that it is being propagated in society causing fear in the minds of the people. This needs to be stopped.
8) Assuring any woman to perform gopala santan ritual in the fourth month of her pregnancy for birth of a male child, operating stomach by fingers, diagnosing disease by placing stone, farshi (tile) on the head, making use of improper and harmful methods to diagnose and treat diseases and illness; claim to have divine remedies for abortion, contraception, enhancement of physical satisfaction in the sexual act for men and women, increasing their sexual powers, menstruation problems, conceiving, etc.
In the disguise of offering motherhood by performing some divine act or magical remedy keeping sexual relations with women who are unable to conceive, deflowering them, keeping illicit sexual relations with them.
This has now been removed and a short provision stating that claiming to perform surgery by fingers or claiming to change the sex of a foetus in the womb of a woman, has been put in place.
9) To spread threat amongst the people by way of invoking by mantras, putting up a false show to make a person free from poisonous infection, creating an impression that there is ghostly or divine wrath causing physical injuries and stopping a person from taking medical treatment and instead diverting him to practice aghori acts or deeds.
The following provision in this regard has been included instead:
To create panic in the mind of public in general by way of invoking ghosts by mantras, or threaten to invoke ghost, putting up a false show to make a person free from poisonous infection by invoking mantras or similar things, creating an impression that there is ghostly or divine wrath causing physical injuries and preventing a person from taking medical treatment and instead diverting him to practice aghori acts or treatment, threatening a person with death or causing physical pains or causing financial or psychological harm by practicing or tend to practice mantra-tantra (chetuk), black magic or aghori act.
10) In the name of jaran maran, karni or witchcraft (chetuk), assaulting any person, parading him naked, excommunicating or declaring any person as outcast or to expel a person from society or put a ban on his activities, declaring such person as possessed by evil spirit or incarnation.
To appear in the state of complete nakedness in the public place and misbehaving with women by treating oneself as awaliya baba or baba with divine power.
This has now been substituted by the following two acts:
By declaring that a particular person practices karni, black magic or brings under the influence of ghost, or diminishes the milching capacity of a cattle by mantra tantra, or create suspicion about such person, or similarly accusing a particular person that he brings misfortune to others or is responsible for spread of diseases and thereby making the living of such person miserable, troublesome or difficult, to declare a person as Satan or incarnation of Satan.
In the name of jaran maran, karni, or witchcraft assaulting any person, parading him naked or put a ban on his daily activities.
11) To create an impression that insanity has been caused to a person due to influence of ghost or divine power and to conduct mantra tantra to cure him by way of sacrifice of hen or goat or any other animal.
Cheating people in the false hope of providing freedom from madness, offering treatment to patients of serious or terminal illnesses by offering stones with the powers of mantras, finger ring, bangle, jogstick or thread, tait, ganda dora, etc, with such false hope.
This has now been replaced by: To create an impression that a mentally retarded person is having super natural power and utilizing such person for business or occupation.
The following provisions have also been removed:
Causing disturbance in society in general or creating panic or cause intimidation by way of chanting Mantra or Tantrik action in the name of exorcising a ghost or to free a person from the influence of ghost or evil spirit.
By declaring that Devi, a spirit has influenced one’s body, create disturbance by shouting and thereby spreading threat and disturbing the general peace, declaring the names of the persons who has done karni, etc, thereby making the living of such a person miserable of difficult, to provide unscientific cure to psycho somatic conditions such as giving angara, pendant, etc. to the people. Haunting a person with an influence of ghost by practicing witchcraft which cannot be proved with the help of modern science. Treating any disease with the help of mantra tantra without authorized or recognized medical degree under the law for the time being in force. Threatening a person with death or causing physical pains or causing financial or psychological harm by mantra tantra (witchcraft), Black Magic or by practicing aghori treatment.
Trying to make believe burning of things, vanishing of things, appearance of cross marks on the body, etc, as effect of bhanamati and claiming treatment for the same. Claiming to perform miracle by burying oneself in the ground. Under disguise of offering God’s blessings, cheating people by way of accepting money or any other belongings, by unlawful means. In the name of religion, Holy Scriptures, God and Goddesses, display of false extraordinary powers, indulgence in free sexual relations, adopting unethical and corrupt means for cheating and duping people. Compelling women to enter into prostitution and committing atrocities against them, by cheating them under blind faith.
The following other provisions have been included:
With a view to receive blessings of super natural power to follow the evil and aghori practices which cause danger to life or grievous hurt; and to instigate, encourage or compel others to follow such practices.
This is a noble effort of the legislators to put an end to the atrocities being committed in the name of religion. Throwing people in burning flames to cure people of Chicken Pocks, writing Ram on the doors of the house to prevent the unholy ghost from entering the house is becoming increasingly common these days. Although the intentions are good, as has been seen in the past, not all legislations score high marks where implementation is concerned. Some fail more so because people refuse to follow them and because it appears to be against the customs and traditions of the people. Literacy drives would have been more appropriate for such a personal subject. No committee has been put in place under this bill that would go around educating people about the evil effects of these practices. Another thing that comes across is that most of the acts named in the bill would be offences in itself, the only difference is that their commission under the guise of religious practice would henceforth also be termed as an offence. Nevertheless, the success of the bill still remains to be seen.
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