Fifty years after court struck down law to ban social boycotts, Maharashtra may get a second chance
The state government is due to table a bill against social boycotts by caste panchayats in the monsoon session of the Assembly.
In a state where self-appointed caste panchayats routinely ostracise people for transgressing social norms, the government is finally taking a step forward. This monsoon session, the Maharashtra government is due to table a draft bill to prevent social boycotts in the state assembly.
Chief minister Devendra Fadnavis had announced in March that the Prevention of Social Boycott and Protection from Jaat Panchayat Bill would be ready in three months, but the state’s social justice department is yet to finish working on it. Meanwhile, activists rooting for a stringent law against various formof social boycott are unclear about the scope of the bill: if a new law is enacted, will it penalise just intra-caste ostracism or boycotts across caste lines? Will the bill focus on caste alone, or encompass excommunication cases in all religious groups?
Sixty six years ago, when present-day Maharashtra and Gujarat were known as the Bombay province, the state had passed the Bombay Prevention of Excommunication Act, 1949. The focus of that law was to protect the civil, social and religious rights of those excommunicated by their own communities. The law, however, was short-lived. In 1962, after a prolonged legal battle, the Supreme Court declared the Act unconstitutional.
Now, more than 50 years later, Maharashtra has a second chance to deal with the practice of social boycotting with the new bill.
The first Act, and its fall
The Bombay Prevention of Excommunication Act was enacted in 1949 largely because of redressal sought by boycotted members of the Dawoodi Bohra community, a close-knit sect of Shia Islam. The Act prohibited the expulsion of any person from his or her religious creed, caste or sub-caste and held any such excommunication to be invalid. Under the law, no community could deprive a person of their right to property, to worship in religious places, to perform funeral rites or other rituals.
In 1951, however, the leader of the Dawoodi Bohras, Syedna Taher Saifuddin, challenged the Prevention of Excommunication Act in the Bombay High Court. The Syedna’s contention was that the Act infringed upon his constitutional freedom of religion by curtailing his right, as the religious head, to discipline the community by casting out “errant” members.
When the High Court upheld the Act, the Syedna appealed in the Supreme Court and in 1962, a five-judge bench finally gave a divided verdict. A minority among the judges wanted the Act to be upheld, but the majority judgement regarded excommunication as a legitimate practice of a community that had to be protected under Article 26 of the Constitution, which grants individuals the freedom to manage religious affairs. The apex court concluded that the Prevention of Excommunication Act was unconstitutional.
“Technically, the matter isn’t over, because reformist Bohras [who had been excommunicated] filed a review petition that is still pending in the Supreme Court,” said Irfan Engineer, a human rights activist and reformist Bohra whose father, Asghar Ali Engineer, was boycotted by the Dawoodi Bohras in the 1970s.
Time for a new law
All these years later, Engineer believes a new law against social boycott would be a welcome step. “If there is a law, people would fear the repercussions of ostracising others,” he said. “In the absence of a law, communities get emboldened to propagate boycotts, as we see with the Bohras or caste panchayats.”
The call for a new legislation against social boycotting came in 2013, when the Bombay High Court was hearing a petition by two ostracised members of the Koli community from Raigad. The court ordered the state government to draft a legislation in order to deter the social boycotts imposed by caste panchayats on individuals who transgress caste norms. The court had also insisted that police stations across Maharashtra should treat cases of social boycott by caste panchayats as criminal offences, under sections on conspiracy, intimidation, extortion or promoting enmity between different groups.
Since then, the state has seen several instances of individuals and families being boycotted for various reasons, most often for marrying within the same gotra (clan) or outside the prescribed boundaries of caste. But different kinds of cases keep popping up. Last year, for instance, a mountaineer from a Raigad village, who had climbed the Everest in 2012, was boycotted by villagers because his wife, an advocate, wore jeans and did not sport a mangalsutra or bindi. The couple were isolated, excluded from temple functions and not even allowed to use water from the village tap.
In April, 13 Dalit families from Osmanabad district were boycotted by upper caste villagers after a statue of Babasaheb Ambedkar was desecrated and the Dalits filed a police complaint. The Dalits have been denied public water, access to grazing fields for cattle and even groceries in shops. Even though the boycott has been called off, the 13 families continue to live in fear.
Different shades of boycotts
These different cases have raised questions about the scope of the new bill being drafted against social boycott.
“There are at least three different kinds of boycotts,” said Hamid Dabholkar, member of the Maharashtra Andhashraddha Nirmoolan Samiti and son of slain rationalist Narendra Dabholkar. One kind is when a self-appointed panchayat of one’s own caste group calls for a boycott of an individual or family; another is when a village, across caste lines, chooses to shun someone living among them; a third kind is when one caste group targets another, as in the case of the Dalit families in Osmanabad.
In April, when the Maharashtra government had started drafting the new bill, Dabholkar’s Samiti submitted its own draft for the state to consider. “We included the first two kinds of social boycott within the purview of our draft, because there are already laws in place to deal with inter-caste discrimination,” said Dabholkar. “For now, it is important to crackdown on caste panchayats, which work as completely unconstitutional parallel justice systems. But in the long run, there is ample scope to expand a law against social boycott.”
Mumbai-based lawyer Mihir Desai also points out that the draft bill could make a distinction between “excommunication” – removing an individual from one’s religious group – and social boycott. The latter, he says, is a vague term that could imply depriving someone of their basic civil rights or simply refusing social interaction with them.
“What we need is a broad anti-discrimination law that governs both public and private life,” said Desai.