Reality Check India

A critique of the new Anti Superstition laws in two Indian states

Posted in Uncategorized by realitycheck on November 10, 2013

The new anti superstition bills in the Congress ruled states of Karnataka and Maharasthra constitute one of the most audacious attacks on personal liberty, freedom of speech and religious expression. Under the guise of scientific social reform, it will perpetuate some superstitious practices while outlawing others.

The Congress government in Karnataka is now mulling over a draft law called Karnataka Anti Superstition Bill 2013. It was prepared by the Centre for Social Exclusion and Inclusive Policy of the National Law School on invitation by the state government. This law follows close on the heels of a similar law passed in the neighboring Congress ruled state of Maharashtra.

The experts at NSLIU have produced a concept note and a draft bill. The draft bill details the structural aspects of the law and the concept note provides the ideological and legal foundations.  These two documents form the basis for this post.

skull

The law in a nutshell

The trajectory of the law follows the well trodden path of stretching Article 21 (Right to Life and Liberty) of the constitution to cover such things as “Right to a life with dignity”.  An innocent directive principle in Article 51(a)(h) which calls for “scientific temper, humanism and the spirit of inquiry and reform”, which should ideally call for increased investment in science  is now reconstructed to ban certain types of private conduct as being unscientific.

Until now, the cover of “Life with dignity” was only used to erect a regime of positive rights. This device along with the usual literary flourish has been used for an ever expanding list including  “Right to Bonus/ Pension/ Leave allowance” , “Right to squat”, “Right to medical treatment abroad”, “Right to Information”, “Right to food”. Positive rights are a claim by citizens on the state – these typically don’t result in criminalizing other peoples behaviour. The anti-superstition laws make the following leap.

“It marks certain types of voluntary activities, broadly not narrowly, as being against the dignity of the participants, even though the participants themselves do not think so.  The people who make the determination are supposed to be experts, who can regulate the acceptable level of dignity in each person, in every socio-economic setting, today as well as into the future, in every psychological state.  Once the committee decides that your dignity has been compromised – criminal sanctions are imposed on participants, typically the facilitator of the activity.”

The issue of harms

This isn’t the whole story of course.

It is indisputable that some kinds of superstitious activity cause harms. The real test of a legal system of any society is whether it can accommodate all these into a modern body of law.  If you need a law to punish human sacrifice, what does it tell you about the quality of your homicide laws ? The authors of anti-superstition bill make the following distinction.

Practices that cause harm : Murder , rape, physical injury all punishable under normal law.  And others like the Thai Poosam rituals of piercing your body, divination and oracles  (only if it is a bad prophecy !!), and a rather clever one to prevent “Godmen” from exploiting people.

Practices that dont cause harm (they call it benign superstition) : Quiet and decent worship, private superstition – like tying your right shoe lace first, breaking coconuts (can go either way).

The law grudgingly grants benign superstition, even though it is equally repugnant to their construction of Article 51(a)(h),  but are categorical in  outlawing the practices that they classify as causing harm or loss of dignity. The problem is the principle of harms is designed to prevent you from harming others. It does not allow experts to unilaterally determine that a harm has taken place while the parties involved vociferously deny it.

The enforcement of the law

It follows the usual recent trend in involving civil society members in various kinds of tribunals.  There will be a new office called The Karnataka Anti Superstition Authority at Bangalore and Vigilance Committees on Superstitious Practices in each of the districts. The vigilance committee which will have some powers of a Civil Court will include the District Magistrate, three Govt officials, and five Civil Society members. The bill goes into a bit of detail on the salaries, allowances, powers, etc.  The vigilance committees Para 16 (1) will undertake surveys to identify superstitious practices Para 16 (2) will suo moto cognizance of violations. Frankly, this arrangement leaves little to the imagination. The seek and destroy mandate to this committee means the normal constraints against witch hunting are not applicable to those who are err… witch hunting.

Disparate impact on religions

Hinduism is a remarkably diverse religion. There is no central sanction of any practice. Hindu practices include extensive worship of nature (earth, animals, trees, geographical features, planets)  as well as ancestor worship.  It is but natural for a variety of diviners and intermediaries to be involved in such a belief system. For any law to pass muster, it must not have a disparate impact on various groups of people.

The law (MH law but also cited and cited by the KA concept note) seeks to make the following illegal.

Astrology, Animal sacrifice, Ghosts, Bhanamati, Reincarnation, Black Magic, Spiritualismm Paranormal claims, Miracles, Godmen’s influence Vastushastra Witchcraft

Appendix 1 : KA Concept Note

Here is what the Catechism of the Catholic Church says  (2116 and 2117 )

2116 All forms of divination are to be rejected: recourse to Satan or demons, conjuring up the dead or other practices falsely supposed to “unveil” the future.48 Consulting horoscopes, astrology, palm reading, interpretation of omens and lots, the phenomena of clairvoyance, and recourse to mediums all conceal a desire for power over time, history, and, in the last analysis, other human beings, as well as a wish to conciliate hidden powers. They contradict the honor, respect, and loving fear that we owe to God alone.

2117 All practices of magic or sorcery, by which one attempts to tame occult powers, so as to place them at one’s service and have a supernatural power over others – even if this were for the sake of restoring their health – are gravely contrary to the virtue of religion. These practices are even more to be condemned when accompanied by the intention of harming someone, or when they have recourse to the intervention of demons. Wearing charms is also reprehensible. Spiritism often implies divination or magical practices; the Church for her part warns the faithful against it. Recourse to so-called traditional cures does not justify either the invocation of evil powers or the exploitation of another’s credulity.

Source : Vatican Web Site

As you can see Christianity is already compliant with the law, or rather the law is resonant with the basic premises of the church. That the practice of faith, all of which is superstitious by definition to an atheist,  can be cleanly divided into Godly practices and Demonic practices is outlandish to other faiths.

Needless to say, all of this is completely at odds with decentralized Hindu society. What is considered occult, pagan, repulsive to one could form the core of another religion. Due to the centrality of ancestor worship and re-incarnation, the oracles and diviners will always have a special place in Hinduism.  Even within Hindu society the bill favours practices of the Brahminical upper castes, who engage in relatively orderly worship at specified temples or mutts while outlawing most of the physical practices of the masses. Under the harms logic, the widespread practices of Thai Poosam, the walking on coals, the pulling of chariots or various practices like Kavadi which call upon physical pain stand outlawed. Astrology, parrot fortune telling, shell fortune telling, are all purely voluntary activities involving mostly peasant Hindu communities.  Even within the Christian faith, the practices of the Pentecosts and a lot of the new age churches will be hit hard while those of the Catholics a lot less.

Affront to freedom of contract and principles of self autonomy

The central legal issue – that of adult and competent consent is brushed aside in a nanny law. The masses, it is claimed, do not know how to conduct their affairs or to solve their psychological troubles correctly, hence expert guidance along with state sanction is needed to whip them into conformance. The impact on contracts that straddle the faith  line is huge. For instance, I enter into a building contract and demand a water source on the north east in conformance with my belief in Vaasthu. The contract is not entered under duress, rather the builder or architect, has to now work this into his product or he loses my business. So what is a private contract between two parties is now proscribed even though there are no negative externalities. You may consider this to be an easy example, yet this is the nature of all activities banned. If I go to an exorcist, the contract is that he hits me with neem leaves after dousing me with ash.The deal is, I get a measure of psychological relief, we split the difference in cash.  You and I can laugh it off, but who are we exactly to comment on matters of the mind.  Depression and insomnia are still without answers in science – by outlawing otherwise legal conduct – you are denying people a vital supplement.

Contracts under duress or fraud, murder, rape, assault are all covered under existing law. There are strong social feedback mechanisms that weed out fake practitioners – if I go for an astrological consultation and the practitioner sticks a hook into me, he will have hell to pay. As the recent Asaram case, he has been held under current and correct law, the new law will seek to imprison him for claiming to be a kind of prophet or reincarnation of saints or gods (Appendix 1- Para 2 of concept note).  Is this scientific ?

Rationalists are drawing an incorrect legal parallel to the ban on child marriage. They say it is also a voluntary activity, how come you accept a ban on it ?  What is being missed here is that the parent doesn’t own their child in the same sense that they own their own bodies.  It is understood that they are just guardians of their children until they attain majority.  Forcing the child into a long term contract without the requisite mental and sexual development can hardly be called voluntary. It is so frustrating that we have to start every argument from the basics.

The physical activities banned by the bill such a putting a hook through your skin, pulling a chariot – constitute a slippery slope. If you were to ban voluntary activities that cause physical harm with no scientific basis, why not ban plastic surgery? Tattoos and piercings. Hair transplants, breast augmentation surgery. The ban on voluntary pagan rituals involving women in various stages of undress has the same problems, why allow fashion shows ?  You throw a poor peasant practicing his ancestral form of worship in jail , while the same activity is allowed for other urban people.  These contradictions are the reason why evolved democracies shy away from forbidding voluntary activity.

Anti witchcraft laws repealed across the world

All across liberal democracies, anti witchcraft and anti divination laws have been repealed.  The USA has TV channels with plenty of psychic lines, tarot readings, crystal balls, palmistry.  They have achieved a great balance by adding a tiny disclaimer “For Entertainment only” The new religion of Wicca ( a polytheist pagan nature worship ) religion is make some strides in the USA. The last remaining local statute against divination in the state of North Carolina was recently repealed.  Britain had its last anti-divination law – the Fraudulent Mediums Act repealed a few years ago. To truly find a parallel to the Karnataka Act you have to go all the way back to The Witchcraft Act 1542 enacted by King Henry VIII – which had similar provisions to the Karnataka Act. The act called for sanctions against invoking spirits for a voluntary participant causing the same kinds of harms mentioned in the Karnataka Act.

use devise practise or exercise, or cause to be devysed practised or exercised, any Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries to thentent to fynde money or treasure or to waste consume or destroy any persone in his bodie membres, or to pvoke [provoke] any persone to unlawfull love, or for any other unlawfull intente or purpose … or for dispite of Cryste, or for lucre of money

Witchcraft Act 1542

Ironically in the west, due to the various Christian reformations, the upsurge of scientific discovery, it was thought ludicrous and highly illiberal to be so scared of spirits and the occult – that you needed to outlaw them.

On Rationalists

Rationalists need to focus on the number one irrational institution in the country today. Social justice is unmonitored, no data is available about its beneficiaries, how each component community has progressed over time. Jats are agitating to get inside the circle.  Muslims think they are being denied what Hindu OBCs take for granted.  It is quite remarkable that rationalists are okay with this state of affairs. A scientific social justice platform is the only just platform.

In the case of Madde Snana, the rationalists and communists need to be less concerned about this voluntary activity as distasteful as it may be to them. Instead of worrying about people rolling in food superstitiously, they should be more outraged at the hordes who are eating left over food. The acid test for Indian rationalists is the doctrine of strict scrutiny of social justice to ensure it reaches everyone evenly. I am yet to encounter a rationalist who passes this test.

How to reduce overall levels of superstition in the country

I do not think superstition needs to be tackled legally per se. Rather the main body of law must take into account various alibis, witness issues,  and factors arising out of the cover of superstitious activities.  But to the extent it must be reduced here is how you do it.

Step 1 : Reduce the level of uncertainty in the economy.  If people are allowed to plan their lives in an environment of stable policy – they are less likely to propitiate the spirits to swing the activities of politicians and regulators their way.

Step 2 : Strengthen the rule of law.  Laws must be clearly framed and not be contradictory, clear notices and framework of legal and illegal conduct. A uniform stable clear law will result in fewer people praying for the dice to be loaded in their favour.

Step 3 : More prosperity, more production. A lot of superstition in India is aimed at negotiating the familiar traps of crushing poverty even after 70 years.  Will I, wont I, fall into it?  Will I get the job ? Will the tout who took money for a govt job honour his end ?  As prosperity rises – a whole chunk of this will vanish.

This post has now run over the limit. Let me quickly summarize. This bill is bad.

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7 Responses

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  1. pp_chn (@pp_chn) said, on November 11, 2013 at 12:24 am

    RuleofLaw won’t solve any problems for Hindus. Here is why:Demography matters.

    Poverty in ’47 was much higher than now. Yet, law makers thought it fit to pass such a a bill in MH & now trying in KA. Expecting this bunch of anti-Hindus to pass “clearly framed laws” is like believing in Santa 🙂

    What changed is reducing number of Hindus & increasing number of anti-Hindus. Anti-Hindus includes the Muslims, Christians, “free market” believing ” socially liberal” Hindus that enable the first two to live amongst Hindus, with equal voting rights to boot.

    Step 3 : More prosperity, more production

    Again, KA & MH are some of the most prosperous states in the country. Yet they dared to pass such blatantly anti-Hindu bill. Doesn’t that demolish the myth that more educated, more prosperous = better laws? If Hindus are to be allowed to pursue their traditions, the aim should be not to enable Macaulay education, which is what “education” means in India. More prosperous have no need for native (jAthi) traditions, believes in the mythical “all religions are same” spouted by New Age gurus.

    Reduce the level of uncertainty in the economy.

    Won’t happen in the world of free trade & “free market” competitive economy. Coming soon, may be already happening: cheap labor of Indians to compete against cheap labor of robots. Policy won’t matter, unless its going to ‘protectionist’. As I read recently somewhere, every 7 years the labor force has to retrain itself to keep in pace with “free trade”. Good luck with reducing the uncertainty levels.

    http://isteve.blogspot.com/2013/11/tom-friedman-let-them-hack-cabs-and.html

    This is the reality Hindus will soon face “the only high-wage jobs that will support the kind of middle-class lifestyle of old will be high-skilled ones, requiring a commitment to rigorous education, adaptability and innovation, she added. …”

    This bill is bad. The way to overcome is to explicitly state what the bill is against, not by whitewashing it as attack on ‘personal freedom’, ‘freedom of speech’ etc.

  2. Sigh Baboo said, on November 11, 2013 at 3:52 am

    RC Sir,
    One thing that we can be convinced of is that the setting up of the Anti-Superstition Authority will ensure the permanence of “superstition”. No activity that a Government is involved in, ceases.

    Long live Superstition!

    Thanks for writing it!
    Sighbaboo

  3. Rakesh Babu G R said, on November 11, 2013 at 11:02 am

    Will the law apply to the superstitious beliefs practiced by the many tribals(who the leftists claim to speak for) of Karnataka?

    • rc said, on November 11, 2013 at 12:35 pm

      Yes it applies to everyone. As noted in my post, Tribals will be crushed by this law due to the disparate impact.

      Almost all of tribal practices will be criminalized, where as almost none of the superstitious practices of organized religion will be. The key is they make a distinction between benign superstition and evil superstition. Dangerous stuff.

      BTW: Good to see you back.

  4. coderaptor said, on November 11, 2013 at 5:33 pm

    Do you have concrete answers to reducing the uncertainty in economy? Thanks.

  5. coderaptor said, on November 11, 2013 at 6:14 pm

    I don’t know about KA bill, but MH ordinance has an appendix that very clearly articulates what activities are punishable. The ordinance applies to all of MH state, irrespective of any religion. And why are you afraid if tribals are hit hard? Do you want them to remain tribals all through their next generations as well, and never progress?

    As for reducing the uncertainty in economy, the “aghori” practices are prevalent irrespective of the status of Indian economy from what I know, and reducing the uncertainty in economy will surely not eradicate those.

  6. Kranti said, on November 18, 2013 at 11:20 am

    I think in spite of an attempt to look at the need for and effectiveness of anti superstition laws the article deviated and went out of context..

    As ‘ coderaptor ‘ rightly mentioned taking care of economic development and other social justice aspects while will surely result in progressive society on a long term basis , there are issue that need to be dealt with in the short term.

    We cant tolerate criminal activities done under the guise of religious superstition with the intention to cheat and harm people.. While the context for superstition is cheating , harming naive people , it is different from people attending fashion shows , using tattoos which are to be looked completely in a different context of style and individual preferences .So these are not correct comparisons.

    I have seen very high level of insensitivity even in educated , modern parents subjecting themselves and their children to superstitions….. If we cant stop major atrocities done in the name of superstitions then we will never get in to the realm of very subtle issues being practiced by even by educated and literate ..

    It may be true that such laws have been repealed in developing countries we cant ignore the fact that they were there serving the purpose until the countries evolved..Same will apply to India also .. We cant look up to other countries so naively when it comes to laws.. Laws have to be looked at in our context


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