Wednesday, 6 July 2016

Maharashtra Takes a Step Towards Prohibiting Social Boycott

image courtesy: Shuttershock

No man is an island. Man is a social animal. We need the company of others as much as we need food and water. The Constitution of India has exalted the right to live with human dignity to the position of a fundamental right and indeed it is fundamental in every sense. Social boycott or ostracism is then a crime. Neither to be perpetrated, nor tolerated. The Government of Maharashtra has taken a very bold step in the direction of social change. It has recently passed the Maharashtra Prohibition of Social Boycott Act, 2016 which quite exhaustively addresses the issue of social boycott. It is interesting to note that this Act covers social boycott and does not specifically mention excommunication. Previously the Bombay Prevention of Excommunication Act, 1949 had been challenged and struck down by the Supreme Court as being unconstitutional for violating the fundamental right to manage religious affairs of a community in the Dawoodi Bohra case. Social boycott is a larger term encompassing all acts of ostracism. The present Act strives for social inclusion and condemns all types of acts of ostracism. Any act which causes social boycott including expulsion from the community shall be void and unlawful. From this perspective, the Act appears to be constitutionally valid although it covers all communities and prohibits expulsion. It also has specific reference to access to wakf property. Thus under the pretext of managing religious affairs no kind of social boycott can be perpetuated. Under a master stroke the Act tries to solve the problem plaguing rural Maharashtra.

Other states can very well emulate Maharashtra. But, certain questions arise on plain reading of the Act. The first issue here is the complaint resolution machinery. The victim has to file a complaint with the Police or the Magistrate. The complaints under this Act would have to join the queue in the already overburdened criminal justice system. The Police machinery shall investigate the complaints. The Magistrate has power to provide protection to victim as necessary during the trial and the trial is to be completed within 6 months from date of filing charge-sheet.While it is too early in the day to comment on the efficiency of the machinery and the closure of cases under the Act, questions arise whether the victims can be assured of protection and fair treatment in caste ridden areas where powerful caste panchayats run parallel justice systems and heavily influence even the Police system. The Act also creates the post of a Social Boycott Prohibition Officer (Officer) who shall be an officer of the Government and shall be appointed by the State Government. The Officer’s duties are primarily that of detecting commission of offences, assisting the Magistrate and the Police in investigation and trial, and overseeing the compliance with the Court order of community service. The Officer shall have no powers except to report back to the Magistrate, although the Act does allow him to vaguely “take such action as he deems fit”. The creation of the Officer’s post and his role stated in the Act suggest the Government’s serious intentions towards resolving instances of social boycott and tensions. However, unless the Officer is provided sufficient powers and immunity for his actions, he shall remain a hollow functionary. The Officer would need more ammunition than is provided at present. Another aspect which needs consideration is the treatment of offences. Instead of offences under the Act being bailable and cognizable, the offences should be categorized as bailable/non-bailable, cognizable/non-cognizable based on the nature of acts and dealt more seriously and brought at par with other heinous crimes under the Indian Penal Code.

The Act also provides for compensation to be given to victims out of the fines recovered by the Courts. This clause is a step in the direction of recognizing and assigning tortuous liability of the perpetrator. The well intentioned Act raises questions whether issues of social behavior can be resolved by such policing or whether it will only make matters worse. Considering the past trends, the caste panchayats usually try to brainwash and rationalize their actions and turn offenders into heroes. 

Only time will tell the effectiveness of this Act. Through education and awareness, desired behavioral change needs to be internalized. All in all, the Maharashtra Prohibition of Social Boycott Act 2016 is a welcome step in the right direction.