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By Karthi Sivaraman
Indian laws are often framed without due consideration towards their precision, constitutional validity, efficacy, and enforceability. Many or all of these factors are given a go-by, in order to satisfy group demands in our democracy. Two such examples are the recent anti-superstition laws passed by Karnataka and Maharashtra (2013).
A read of the ordinance passed by MH government (2013) states that the ordinance is aimed at “evil, sinister, and aghori practices and practices of black magic and evil spirits at the hands of conmen”. The MH ordinance also lists 12 clauses that describe (not the entirety) circumstances that warrant the use of this bill.
That these acts are crimes is not the bone of contention. It is that the 12 clauses provide examples of where this ordinance may be applied, but no definition of key terms that are repeatedly used (for example: what is “evil”? What is “sinister”? Ironically, the term “sinister” has superstitious connotations).
This lack of definition is a serious issue. However, that is just the tip of the iceberg. The real problem here is that in the name of controlling superstition, the government seeks to interfere in private citizens’ right to practice religion. Here I argue why such imprecise laws are impractical and pose a threat to fundamental rights of a citizen.
There are two parts to this argument. One, any law to regulate or penalize superstitious beliefs will affect a citizen’s right to practice his or her own religion, and two, such laws are superfluous and the crimes described therein are already covered by a multitude of criminal laws.
To understand how such laws will affect someone’s right to practice a religious ritual we must start with some basic questions.
What is superstition? It is defined as “an excessively credulous belief in and reverence for the supernatural” or “a widely held but irrational belief in supernatural influences”.
Sounds well defined, doesn’t it? Let us cross-check that with another one.
Religion: “The belief in and worship of a superhuman controlling power”
For those who didn’t spot the difference, in reality there is none. However, for believers of any persuasion – there is a subjective difference depending on whether the ritual exists in their religion or not. In other words, what is sauce for the goose isn’t for the gander. What is religion for one person becomes “superstition” for another. Given this fundamental subjectivity, how can a law enforcement officer from religion X objectively probe superstition charges against a person belonging to religion Y?
In its strictest sense, superstition is NOT distinguishable from “religion”. The inability to define superstition as being distinct from religion makes the laws fraught with danger – since it gives the enforcing authority wide-ranging subjective discriminatory powers. This law is ill-defined.
The second problem with defining superstition is one of resolution. Let me illustrate it with an example.
Take a ruler (foot scale, for us Indians) and keep it a foot’s length away. Now, can you see the gap between two-millimeter lines? Yes. Now ask a person standing 10 feet away, whether they can see the gap between the two lines. Can they see it? Having seen a ruler, any person can imagine the gap between the two lines, but they can’t see it, because our ability to tell apart differences is dependent on our proximity to a given situation. This illustrates the difficulty in defining “superstition”. The line between belief and superstition is so thin, that anyone who is not in “that” system cannot make out the difference. Therefore outsiders are prone to do two kinds of binning: one of categorizing ‘superstitions’ as ‘religious belief’, or categorizing ‘religious belief’ as ‘superstition’. In the former case, the law is not doing its job, but in the latter – it interferes with a person’s right to pursue a religion of their choice.
Also, if I am part of the system that carries that superstition, won’t I be wary of letting anyone know? Another problem is this, when states make superstitions illegal, how likely is it that a person will rat out on his or her kin, for their “beliefs”?
This makes the problem intractable. That means, I cannot measure the problem precisely, and quantify the ameliorative effect (or lack thereof) of a legal remedy.
Third is a problem of enforcement. Let us assume that superstitions cause bodily or mental harm. How is the law going to prevent it? Let us be very clear, in almost all cases – the law comes into play post-facto. IPC 302 (made famous by Indian movies) comes into play if and only if there is a pre-meditated crime of the “rarest of the rare” type. That is, the law will only punish the guilty – not prevent the crime. The deterrent nature of legal punishment is a case of John learning form punishments of Josh – thereby preventing John from committing the same crime. Its purpose is not to preemptively monitor a citizen, and intrude in his life, so as to prevent him from committing any crime. The only laws that allow pre-emptive policing of citizens are the ones that trample on civil right, such as Section 144. And such laws depend on the presence of a disproportionately large contingent of police with respect to the size of the population being controlled. It is not feasible to monitor normal citizens in order to identify belief-based behaviors such as “superstition”.
This law is not enforceable.
Essentially, the anti-superstition bill a) can’t distinguish superstition from religion, b) can’t be defined reliably by anyone who is outside a given belief system, and c) can’t be enforced for prevention. Can this get any worse? Sadly, the answer is a yes.
The KA anti-superstition bill seems to deal with “demeaning effects of a practice” on the body or mind (for detailed legal analysis of one of the bills, see here). So, practices such as “alagu” (practice of piercing oneself for a religious purpose) – and others those causing a person pain (even if self-inflicted) can be considered superstitions.
Since the bill talks about demeaning effects on the mind, the bill can be used against the practice of tonsuring too. If you disagree, check out the number of cases where tonsuring is used as a social “shaming” tool in villages. It is easy to extend the ambit of “anti-superstition” to religious tonsuring that people do to their one year old children. Before we split hair over it – yes, all religious rituals are superstitious if you are an atheist. Obviously, there is no rational reason for tonsuring your child who can’t give his or her consent – is there? Let me ask again, where does religiosity end and superstition start?
More importantly, even if the law initially covers superstitions from all religions, it is possible that minorities will take umbrage under Articles 29 and 30 of the constitution – to remove themselves or their communities from the purview of the law. In other words, Hindu superstitions will become crimes, and others’ would likely escape scrutiny (if you don’t believe me, check out how RTE is now enforced).
So, apart from being poorly drafted and unenforceable, the anti-superstition bill also promises to be biased in its scope. And by the way, the only thing that a superstition bill will encourage is bribery across various arms of our government. How easy will it be to threaten an old man of “superstition” and demand that he pay a “hafta”?
This law has some serious latitude for abuse, discrimination and corruption.
The anti-superstition law is ill defined and ill conceived, has the potential to become discriminatory, and interferes on fundamental rights of citizens to peacefully practice and perpetuate their beliefs. This law needs to be rejected with prejudice.
However, all of this brings us to a very fundamental humanitarian question: what do the victims (yes, there are) of superstition do? How does one protect them? Should we leave the victims (like the child, whose murder the media reported a few days ago) at the mercy of crazy people of any religious denomination? The answer for these questions is fortunately simple.
Causing physical and mental harm to a fellow human being is already and extensively covered under Indian Penal Code.
Instead of creating new laws that have serious fundamental problems, it is time that informed citizens put the onus on the government to deliver on reducing crime burden in our society. And make no mistake – you can’t reduce crime burden by trampling on ones fundamental rights; be it about expression or about religious beliefs.
The writer is a scientist with an interest in Indian politics, the education sector and emerging technologies (in that order - outside his work) and a beginner level student of the Indian constitution.
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