IN THE HON’BLE HIGH COURT OF MADHYA PRADESH BENCH T … · 2020-01-18 · IN THE HON’BLE HIGH...

IN THE HON’BLE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE.

WRITPETITION (PIL) NO. ______ OF ______

AmanSethiya ...........PETITIONER;

Aged: 22 years; Occupation: Student;

Address: Shubham, Mandsaur Road, Sitamau,

District: Mandsaur (M.P.).

Versus

The State of Madhya Pradesh ...........RESPONDENT 1;

through Chief Secretary, Vallabh Bhawan, Bhopal (M.P.).

Department of Home Affairs. ...........RESPONDENT 2;

Government of Madhya Pradesh,

3rd Floor, Vallabh Bhavan-II, Govt. of Madhya Pradesh,

4 th Floor, Mantralaya, Vallabh Bhavan-I, Bhopal

(M.P.).

Directorate of Health Services ...........RESPONDENT 3;

through Commissioner,

4 - 6 th Floor, Satpura Bhawan,

Bhopal (M.P.).

Directorate Women and Child Development Department..RESPONDENT4.

VijayarajeVatsalya Bhavan,

Plot No. 28 A, Arera Hills,

Bhopal (M.P.).

________________________________________________________________

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IN THE HON’BLE HIGH COURT OF MADHYA PRADESH BENCH AT

INDORE.

WRIT PETITION (PIL) NO. ______ OF ______

PETITIONER : Aman Sethiya

Versus

RESPONDENTS : The State of Madhya Pradesh & Others

INDEX

Sr.

No.

Description of Documents Date Annexure

Number

(if any)

Page No. of

Documents

1. Chronology of dates & events

2. Writ petition along with

Affidavit

3. List of Documents

4. Case of SashipravaBindhani

v. State of Orrissa&Ors.

(Orissa High Court)

P/1

5. Research study on violence

against Dalit women in

different states of India by

studying the sources of

materials that are available

and conducting interview of

the perpetrators, victims and

witnesses.

Perception of people on

the manifestation of

witchcraft.

Perception of different

symptoms or symbols

that the households of

the victims living in

P/2

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rural areas have

developed.

Role of Ojhas in the

rural areas.

6. News articles highlighting

the deaths due to witchcraft.

P/3

7. News articles highlighting

the violence other than

murder and culpable

homicide not amounting to

murder due to witchcraft.

P/4

8. Annual Report of Crimes in

India by National Crime

Record Bureau from the year

2005 to 2016.

P/5

9. Copy of Right to Information

Application.

P/6

10. Reply of National Crime

Record Bureau to the Right

to Information Application.

P/7

11. Acknowledgement letter by

the state of Madhya Pradesh

on the concern shown by the

petitioner.

P/8

12. Order of the National Human

Rights Commission.

P/9

13. Advertisements made by

ojhas in the newspaper,

public places and on the

online platform.

P/10

14. Copy of Cable Television

Regulation Act,1995.

P/11

15. Copy of Norm of Journalistic

Conduct,2010.

P/12

Place: Indore Submitted by

Dated: /12/2019

Counsel of Petitioner

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IN THE HON’BLE HIGH COURT OF MADHYA PRADESH BENCH AT

INDORE.



Versus


LIST OF DOCUMENTS

Sr.

No.

Particulars Date of

Document

Original/

Copy

Number

of Pages

P/1 Case of

SashipravaBindhani v.

State of Orrissa&Ors.

(Orissa High Court)

P/2 Research study on violence

against Dalit women in

different states of India by

studying the sources of

materials that are available

and conducting interview of

the perpetrators, victims

and witnesses.

Perception of people

on the manifestation

of witchcraft.

Perception of different

symptoms or symbols

that the households

of the victims living in

rural areas have

developed.

Role of Ojhas in the

rural areas.

P/3 News articles highlighting

the deaths due to

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witchcraft.

P/4 News articles highlighting

the violence other than

murder and culpable

homicide not amounting to

murder due to witchcraft.

P/5 Annual Report of Crimes in

India by National Crime

Record Bureau from the

year 2005 to 2016.

P/6 Copy of Right to

Information Application.

P/7 Reply of National Crime

Record Bureau to the Right

to Information Application.

P/8 Acknowledgement letter by

the state of Madhya

Pradesh on the concern

shown by the petitioner.

P/9 Order of the National

Human Rights

Commission.

P/10 Advertisements made by

ojhas in the newspaper,

public places and on the

online platform.

P/11 Copy of Cable Television

Regulation Act,1995.

P/12 Copy of Norm of

Journalistic Conduct,2010.


Dated: /12/2019


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Versus


CHRONOLOGY OF DATES AND EVENTS

Sr.

No.

Date Event

1. The petitioner came across the evil practise of

witch-hunting in the state of Madhya Pradesh

through the annual reports of National Crime

Record Bureau named ‘Crimes in India’. After

understanding the nature and consequences

through several news articles and research work,

the petitioner came to know about the fact that

people are taking law in their hand and

committing heinous crimes. Further, murder and

culpable homicide not amounting to murder are

not only the end result, people are also becoming

the victims of rape, sexual harassment,

blackmailing, grievous hurts, suicides, social

boycott in the name of this evil and heinous

superstitious practise.

2. 08/11/2017 The petitioner thereafter filed a Right to

Information application in the National Crime

Record Bureau asking for the statistics of the

crime other than murder and culpable homicide

not amounting to murder in the state of Madhya

Pradesh.

3. 23/11/2017 The reply to the Right to Information application

from National Crime Record Bureau revealed that

more than 180 people have lost their lives from

the time span of 2005 to 2015 in the state of

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Madhya Pradesh. The reply to the aforesaid

application also stated that no specific

information is available with the National Crime

Record Bureau.

4. 16/08/2018 Taking the matter into consideration, the

petitioner showed his concern to the Chief

Secretary of State of Madhya Pradesh and Chief

Executive Officer of the National Human Rights

Commission at their registered addresses.

5. 08/10/2018 The State Government of Madhya Pradesh

thereafter acknowledged the concern about witch

hunting in the state and directed the Special

Officer (Co-ordination) to take necessary actions

in these regards.

6. 19/12/2018 The National Human Rights Commission

apparently gave directions to the State

Government of Madhya Pradesh to take

appropriate actions within 8 weeks from the date

of direction.

7. The petitioner asked for the compliance of the

acknowledgement letter and direction by the

National Human Rights Commission dated 8th

October 2018 and 19th December 2018

respectively, but have not received any reply in

this regards from the State Government of

Madhya Pradesh.

8. The petitioner also finds the role of Aghori and

Ojhas as the main instigators behind branding

the victim as witch. The petitioner also finds

Aghori and Ojhas manipulating the public by

promoting themselves in several newspapers and

through pasting posters in public places and

public transport. Hence, such practices raised

the questions regarding the development of

scientific temper, humanism and the spirit of

inquiry which is enshrined under Article 51-A

clause ‘h’ of the Constitution of India

9. The petitioner is now concerned with the issue

that is the state of Madhya Pradesh is aware

about the issue of witch-hunting and the State

Government is wilfully neglecting subject-matter

of concern.The petitioner also came to know

about the fact that neither legislative nor

administrative action has been taken by the state

in order to curb the practise which is infringing

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Article 21 of the Constitution of India.

10. The petitioner is also concerned with the fact that

is the State Authorities, in future, prepares any

action plan in order to curb the activities related

to witch-hunting taking incomplete statistics into

consideration which are neither provided by

State Crime Record Bureau nor published by

National Crime Record Bureau respectively. The

State Government is taking an incomplete action

and thereby the security of the people living in

the state from such evil practices is still under

threat.

11. Hence this petition.


Dated: //2019


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Versus


WRIT PETITION (PUBLIC INTREST LITIGATION) UNDER ARTICLE 226 OF

CONSTITUTION OF INDIA

Petitioner most respectfully submits as under:

1. Particulars of the cause/order against which the petition

is made:-

(1) Date of Order : NIL

(2) Passed in : NIL

(3) Passed by : NIL

(4) Subject-matter in brief:-

The present writ petition under Article 226 of the

Constitution of India, in a form prescribed for Public

Interest Litigation, is being preferred before this Hon’ble

court in a wake of continuing illegal activities related to

witch-hunting in the State of Madhya Pradesh which is in

complete and flagrant violation of the Fundamental Rights

guaranteed under the Constitution of India and to the

International Conventions of whom Union of India is a

signatory. Further, this writ petition is being filed in the

interest of the law abiding citizens who became the victim to

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the activities related to witch-hunting in the state of

Madhya Pradesh.

2. THE ANTECEDENTS OF THE PETITIONERS.

2.1. That the petitioner is a law abiding citizen of the

country, aged about 22 years, residing at Shubham,

MandsaurRoad,Sitamau, District- Mandsaur, and do

hereby solemnly affirm and sincerely state as follows;

2.2. That the petitioner herein is well acquainted with the

issue concerning the continuous illegal activities

related to the superstitious activities of witch hunt in

the State of Madhya Pradesh.

2.3. That the petitioner is filing this Writ Petition as Public

Interest Litigation, and has not filed any other Writ

Petition in this court or any other court on the same

issue. The petition is being filed for the public interest

and not for the private gains.

3. THE FACTS IN BRIEF, CONSTITUTING THE CAUSE:

3.1. The subject matter of the present Public Interest

Litigation relates to the issue of witch hunting, the

practise to which Orissa High Court in the case of

Sashiprava Bindhani v. State of Orissa [(2012) 117

AIC 883]has defined as the practise of accusing or

defaming a woman by calling her Dayan or Dahini or

any other name or symbol suggesting her to be a witch

and harming a person either physically or mentally or

damaging her property by calling her to be a witch. A

copy of the judgment is annexed as Annexure-P/1.

3.2. The witchcraft in India has been characterised as the

act that has existed for millennia all over the country

and across and religious group. The National

Commission for Women has published a report named

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ResearchStudy on Violence against Dalit Women in

Different States of India by studying the Sources of

Materials that are Available and Conducting Interview

of the Perpetrators, Victims and Witnesseson its website

http://www.ncw.nic.in.In accordance with this

report, the victims of this practise are usually blamed

for any ailment or misfortune that befalls the

community. The report states that the perception of

people relating to the severity of the consequences of

witch practices on the community as a whole, by the

branded witch is also an important aspect which

determines the belief system of the community..........

Their belief arises from both fatalistic and superstitious

attitudes. They assume that a woman who is believed

to be a witch not only kills fellow human beings but also

can spread her power of witchcraft. This report also

highlights the perceptions of people on manifestation

of witchcraft. This practise is most widespread in

rural areas with the status of low socio-economic

development. The households of the victims living in

rural areas have developed a perception of different

symptoms or symbols. A copy of the aforesaid report is

annexed as Annexure –P/2.1.

3.3. The United Nations Office of High Commissioner of

Human Rights through its special rapporteur on

violence against women has highlighted the prevalence

of the problem of witch-hunting in the country.Over

the span of last thirteen years, witch-hunts have taken

the lives of approximately two hundred people in the

State of Madhya Pradesh. These practices are often

very brutal as the end result to such practise is death.

A copy of news snippets highlighting the instances of

murder and culpable homicide not amounting to

murder is annexed as Annexure-P/3. When the

suspected victims are not killed, they are beaten,

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raped, tortured, paraded naked in their villages and

have their property confiscated. A copy of news

snippets highlighting the instances of other than


murder is annexed as Annexure –P/4.

3.4. The annual reports published by the National Crime

Record Bureau named ‘Crime in India’ from the year

2005 to 2016 reveal that the number of deaths of

people caused due to murder and culpable homicide

not amounting to murder with the motive of witchcraft

has increased to two-hundred. The relevant pages of

the report from the year 2005 to 2016 are annexed as

Annexure –P/5The crimes other than murder and

culpable homicide not amounting to murder with the

motive of witchcraft have neither been recorded by

State Crime Record Bureau nor been published by

National Crime Record Bureau.

3.5. The petitioner on date 08/11/2017 filed the Right to

Information application at National Crime Record

Bureau having its application number

NCREB/R/2017/50182asking for the statistics of

crimes related to murder, culpable homicide not

amounting to murder and other related crimes. The

copy of the aforesaid application is annexed as

Annexure –P/6.

3.6. The National Crime Record Bureau in reply through

the letter number STT

(200)/RTI/293/2017/NCRBdated 23/11/2017 did

agree to the fact that more than 170 people have lost

their lives through murder and culpable homicide not

amounting to murder from the year 2005-2015 in the

State of Madhya Pradesh. The letter of reply by the

National Crime Record Bureau to the Right to

Information application reveals that no specific

information other than murder and culpable homicide

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not amounting to murder with the motive of witchcraft

is available with the bureau.The copy of the reply

made by the National Crime Record Bureau is annexed

as Annexure –P/7.

3.7. The petitioner after comprehending the subject matter

of witch-hunting and crime rate relating to offences

being committed in the name of witch hunting in the

state of Madhya Pradesh, showed his concern to the to

the Chief Secretary of State of Madhya Pradesh and

Chief Executive Officer of the National Human Rights

Commission at their registered addresses on date

16/08/2018. The State Government of Madhya

Pradesh in its letter dated 08/10/2018 acknowledged

the concern about witch hunting in the state and

directed the Special Officer (Co-ordination) to take

necessary actions in these regards. The copy of the

acknowledgement letter from the State Government of

Madhya Pradesh is annexed as Annexure- P/8.

3.8. Subsequently, the National Human Rights

Commission took such letter of concern in the form of

a ‘complaint’. The aforesaid matter was placed before

the commission on 19/12/2018 wherein, the National

Human Rights Commission apparently gave directions

to the State Government of Madhya Pradesh to take

appropriate actions within 8 weeks from the date of

direction. The copy of the order by National Human

Rights Commission is annexed as Annexure –P/9.The

petitioner sent several letters to the State Government

of Madhya Pradesh asking the compliance of the

acknowledgement letter and direction by the National

Human Rights Commission dated 8th October 2018

and 19th December 2018 respectively, but have not

received any reply in this regards from the State

Government of Madhya Pradesh.

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3.9. The petitioner is now concerned with the issue that is

the Madhya Pradesh State Authorities, in future,

prepares any action plan in order to curb the activities

related to witch-hunting taking incomplete statistics

into consideration which are been provided and

published by State Crime Record Bureau and National

Crime Record Bureau respectively. The State

Government is taking an incomplete action and

thereby the security of the people living in the state

from such evil practices is still under threat.

3.10. The petitioner is also concerned with the issue that

is the state of Madhya Pradesh is aware about the

issue of witch-hunting and the State Government is

wilfully neglecting such subject matter of concern.

From the date of direction by the State Government of

Madhya Pradesh,neither legislative nor administrative

action has been taken by the state in order to curb the

practise which is infringing Article 21 of the

Constitution of India.

3.11. As per Article 51-A clause ‘h’ of the Constitution of

India, it is the duty of every citizen to develop scientific

temper, humanism and the spirit of inquiry.The report

by National Commission for Women reveals that

practice of witch-hunting has become a social and

religious business for the local doctors, medicine men/

ojhas. The ojhas take advantage of the situation and

create difference villagers to fulfil their materialistic

requirements. The ojhas exploit the villagers socially,

economically and physically to satisfy their egotistic

and selfish desires. A copy of the aforesaid report is

annexed as Annexure-P/2.2. The ojhas prefer to

manipulate the people through the advertisements

made in newspapers, public places and online

platform. The copies of the advertisements made by

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the ojhas in order to manipulate the public are

annexed as Annexure –P/10.

3.12. There exist central legislations and regulations

addressing the promotions of these superstitious

activities. The Drug and Magic Remedies

(Objectionable Advertisements) Act, 1954is one among

them. Its Statement of Object and Reasons stated that

it was an Act to “control the advertisement of drugs in

certain cases, to prohibit the advertisement for certain

purposes of remedies alleged to process magic utilities

and to provide for matters connected therewith”. Apart

from banning misleading drug advertisement and

advertisements of certain categories of drugs, section 3

and section 5 of the Act also prohibited the

advertisements of magic remedies with respect to any

of the disease mentioned in the schedule. Magic

remedies for the purpose of the Act included any

talisman or charm that alleged to possess miraculous

power for treatment or prevention of a disease. The

schedule is wide in its ambit and mentions most of the

disease prevalent in India. The advertisements of

drugs claiming to have supernatural healing forces

therefore are banned in India. The Act is little enforced

however, which contributed to the need for

comprehensive legislation that tackles these

issues.The harmful consequences of propagation of

superstitious beliefs through the media have also been

addressed by the legislature.

3.13. The Cable Television (Regulation) Act, 1995states

that transmission or re-transmission of all programme

have to be in conformity with the programme code.

Rule 6 of Cable Television Rules 1994 contains the

programme code.It stated that no programme should

be carried in the cable service that, inter alia

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“encourages superstition or blind belief”.A copy of the

aforesaid regulation is annexed as Annexure –P/11.

3.14. The Press Council of India after certain ratification

published Norm of Journalistic Conduct in the year

2010in order to maintain fairness and accuracy in the

advertisement published and also to avoid the

publications relating to astrological prediction.Rule 1

of the Code mandates the publisher to eschew

publication of inaccurate, baseless, graceless,

misleading or distorted material. Further, it is also the

duty of the press to expose the wrongdoing that comes

to their notice. Rule 36 sets the guideline with

reference to Advertisement by the publisher. It states

that “Newspapers should not publish an advertisement

containing anything which is unlawful or illegal, or is

contrary to public decency, good taste or to

journalistic ethics or propriety”.Furthermore, Rule 38

of the Code set the guideline with reference to

advertisement related to astrological prediction. The

rule states that “The promotion of astrological prediction

and superstitious practices is likely to produce an

unsettling effect on the minds of the readers and is thus

undesirable.” A copy of the Norm of Journalistic

Conduct is annexed as Annexure –P/12.The aforesaid

report by National Commission for Women has also

revealed that generally in rural and tribal areas the

ojhas take bribe to accuse women as a witch.A copy of

the aforesaid report is annexed as Annexure –P/2.3.

3.15. That, in the current scenario, the State of Madhya

Pradesh has failed to protect its people from

inequalities, discriminations, torture and cruel,

inhuman or derogatory treatments.The state of

Madhya Pradesh has also failed to protect the right to

life thereby, leading to the violation of Article 21 of the

Constitution of India. Further,the state has failed to

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take measures in order to promote scientific temper

and humanism. Furthermore, the state has also failed

to take any legislative or administrative measure in

order to curb such practise of witch-hunting.

4. SOURCES OF INFORMATION.

The sources of information of facts pleaded are based on Reports

of United Nations Office of High Commissioner of Human Rights

acknowledging the increasing problem in the form of violence

against women through witch-hunting in India. Further, the

reports of National Crime Record Bureau did help in gathering

the data of murder and culpable homicide not amounting to

murder from the time span of 2005-2016. The petitioner in order

to gather the information with regards to the subject matter

concerned also relied upon Right to Information. Furthermore,

the petitioner took the help of news articles reporting the crimes

other than murder and culpable homicide not amounting to

murder. The list of all the sources referred by the petitioner is

annexed as Annexure –P/14.

5. NATURE AND EXTEND OF INJURY CAUSED/ APPREHENDED.

The nature and extent of injury caused, is irreparable and

everlasting to the victims of witch-hunting as the Respondents

even by knowing that such activities are being conducted in the

state on a continuous basis, are wilfully neglecting this subject-

matter of concern. According to the reports of National Crime

Record Bureau, the statistics of the crimes related to murders

and culpable homicide not amounting to murder have been

raised to two-hundred from the year 2005 to 2016. Further, in

case the victim is not killed, then he/she is subjected to get

beaten, raped, tortured, paraded naked in the villages, driven

from his/her villages and have his/her property confiscated. No

crime other than murders and culpable homicide not amounting

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to murder relating to witch-hunting has been recorded by the

State Crime Record Bureau which ultimately declares such data

incomplete and incompetent enough for the authorities to take

corrective measures for the prevention of the activities related to

witch-hunting in the state of Madhya Pradesh. Furthermore, the

Respondents by not taking any legislative and administrative

measures to curb the practise of witch-hunting, are exposing the

public of the state of Madhya Pradesh to such practices.

6. ISSUES RAISED WAS NEITHER DEALT WITH NOR DECIDED.

That to the best of the petitioner, no public interest litigation

raising the same issue is filed before this Hon’ble Court or before

any other court.

7. ANY REPRESENTATION MADE.

The petitioner most humbly submits that the representation has

already been made to the Chief Secretary of the state of Madhya

Pradesh and also to the Chief Executive Officer of the National

Human Rights Commission containing all the relevant facts and

materials necessary for the subject matter to the current

petition. Hence, no further representation is required.

8. GROUNDS URGED.

That the present petition has been filed on the following amongst

other grounds:

8.1. The state should report and publish the crimes other than

murder and culpable homicide not amounting to murder.

8.2. That several states have come up with special

legislation in order to curb the problem of witch-

hunting and other ‘witch’ related offences. Bihar

became the first state to adopt the Prevention of Witch

Practices, 1999 wherein the preamble of the Act the

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state recognises the crimes other than murder and


motive of witchcraft. The preamble of the Act reads as

follows:-

“To provide for the effective measures to prevent the witch practices and identification of a woman as a witch and their oppression mostly prevalent in Tribal areas and elsewhere in the State of Bihar and to eliminate the woman's torture, humiliation and killing by the society and for any other matter connected therewith or which are incidental thereto. Be it enacted by the Legislature of the State of Bihar in the fiftieth year of the Republic of India as follows:”

8.3. That Chhattisgarh TonahiPratadnaNivaran Act, 2005

also recognises the crimes other than murder and


motive of witchcraft in Section 5 read along with

Section 2 clause 4 of the Act. It is submitted that

Section 5 of the Act talks about causing physical or

mental harassment or damage to any person identified

as Tonahi (Witch). Further, Section 2 clause 4 has

defined the term ‘damage’ as:-

“(4) “Damage” includes physical, mental and economic harm

and harm to reputation;”

8.4. Subsequently, Odisha Prevention of Witch-Hunting

Act, 2013 and Rajasthan Prevention of Witch-Hunting

Act, 2013 have also recognised the fact that the term

witch-hunting not only includes killing someone but

also involves the activity of identifying, accusing or

defaming a woman as witch, or harassing, harming or

injuring such woman whether mentally or physically

or damaging her property. Further, Section 4 clause 2

of both the legislations also includes offences such as

branding a woman as witch, to make her drink or eat

any inedible substance or any other obnoxious

substance or parade her with painted face or body or

commits any similar act which is derogatory to human

dignity or displacing from her home which particularly

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proves the existence of crimes other than murder and


motive of witchcraft.

8.5. The petitioner of this report filed an online Right to

Information application at the National Crime Record

Bureau having its application number

NCREB/R/2017/50182 dated 08/11/2017 asking for

statistics of offences being committed other than


murder.The National Crime Record Bureau in reply

through the letter number STT

(200)/RTI/293/2017/NCRB dated 23/11/2017 did

agree to the fact that no specific information for the

offences being committed other than murder and

culpable homicide not amounting to murder is

available with the National Crime Record Bureau.The

petitioner hereby asserts that such information have

not been provided by the Madhya Pradesh State Crime

Record Bureau to the National Crime Record Bureau.

8.6. It is humbly submitted by the petitioner that if the

Madhya Pradesh State Authority in future prepares

any action in order to curb the activities related to

witch-hunting taking into consideration the incomplete

statistics provided and published by State Crime

Record Bureau and National Crime Records Bureau

respectively, then the state government is taking an

incomplete and incompetent action and thereby it is

the failure of the state in providing adequate and

sufficient protection to the people living in the state of

Madhya Pradesh.

8.7. The state should comply with the directions of the national

human rights commission.

8.8. It is humbly submitted by the petitioner that the

Human Rights Act, 1993 was enacted to provide for

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the constitution of National Human Rights

Commission, State Human Rights Commission in

States and Human Rights Courts for better protection

of human rights and for matter connected therewith or

incidental thereto.The Statement of Objects and

Reasons of the Act makes reference to the

International Covenant ofCivil and Political Rights and

the International Covenant on Economic, Social and

Cultural Rights adopted by the General Assembly of

the United Nations on 16.12.1966 and also the fact

that India is a party to the said covenants.

8.9. The National Human Rights Commission has been

constituted, together with the State Human Rights

Commissions, "for better protection of human rights"

and for related ancillary matters. The Commission is a

high powered body whose Chairperson is a person who

has been the Chief Justice of the Supreme Court.

Among its members is a person who is, or has been a

Judge of the Supreme Court; and another who is, or

has been the Chief Justice of a High Court. Two other

members are to be appointed from amongst persons

having knowledge of, or practical experience in,

matters relating to human rights. The appointment of

the Chairperson and Members is by a Committee

chaired by the Prime Minister and which includes

among other persons, the Speaker of the Lok Sabha,

Union Minister of Home Affairs, the leaders of the

opposition in the Lok Sabha and Rajya Sabha and the

Deputy Chairperson of the Rajya Sabha. The presence

of these high dignitaries on the selection committee is

indicative of the importance which Parliament has

ascribed to the functions of the Commission.

8.10. The functions of the Commission under Section

12 include among other things, the power to inquire

suo-motu or on a petition presented to it by a victim or

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any person on his behalf or on a direction of a court,

into a complaint of the violation of human rights or

abetment thereof or negligence in the prevention of

such a violation, by a public servant.

8.11. When it makes inquiries, the Commission under

Section 13 has all the powers of a civil court while

trying a suit under the Code of Civil Procedure, 1908

and, in particular, in respect of the matters

enumerated therein. The Commission for the purposes

of investigation is empowered under Section 14, to

utilise the services of any officer or investigation

agency of the Central Government or any State

Government with the concurrence of the Central

Government or the State Government. The procedure

before the Commission is governed by Chapter IV of

which Section 17 provides an enquiry into a complaint

of a violation of human rights. The Commission is

empowered to call for information or a report from the

Central Government or State Government or any other

authority or organization subordinate to them.

8.12. The petitioner after comprehending the subject

matter of witch-hunting and crime rate of the offences

relating to witch-hunting in the state of Madhya

Pradesh, showed his concern to the to the Chief

Secretary of State of Madhya Pradesh and Chief

Executive Officer of the National Human Rights

Commission at their registered addresses on date

16/08/2018. The State Government of Madhya

Pradesh in its letter dated 08/10/2018 acknowledged

the concern about witch hunting in the state and

directed the Special Officer (Co-ordination) to take

necessary actions in these regards. The copy of the

acknowledgement letter from the State Government of

Madhya Pradesh is already been annexed as

Annexure- P/8.

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8.13. Subsequently, the National Human Rights

Commission took such letter of concern in the form of

a ‘complaint’. The aforesaid matter was placed before

the commission on 19/12/2018 wherein, the National

Human Rights Commission apparently gave directions

to the State Government of Madhya Pradesh to take

appropriate actions within 8 weeks from the date of

direction. The copy of the order by National Human

Rights Commission is already been annexed as

Annexure –P/9. The petitioner sent several letters to

the State Government of Madhya Pradesh asking the

compliance of the acknowledgement letter and

direction by the National Human Rights Commission

dated 8th October 2018 and 19th December 2018

respectively, but have not received any reply in this

regards from the State Government of Madhya

Pradesh.

8.14. It is humbly submitted by the petitioner that in this

subject matter of concern, on a similar set of facts an

order passed by the NHRC during the course of inquiry

under the power of the Commission under Section

18(a)(i) of the Act being recommendatory in nature, the

direction to furnish proof of compliance was contrary

to law and was liable to be set aside.

8.15. These provisions emphasize three aspects. First, the

enactment of the Protection of Human Rights Act,

1993 is an intrinsic part of the enforcement of the

fundamental right to life and personal liberty

under Article 21 of the Constitution. Equally, by

enacting the legislation, Parliament has evinced an

intention to enact legislation in compliance with

India's obligations under the Covenant on Civil and

Political Rights and the Covenant on Economic, Social

and Cultural Rights adopted by the General Assembly

of the United Nations. Secondly, the Commission is a

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high powered body which has been vested with

exhaustive powers to order an investigation, conduct

enquiries and for which it is vested with all the powers

of a civil court. Clauses (a) to (f) of Section 18 are not

evidently an exhaustive enumeration of the powers of

the Commission since the use of the expression "and

in particular" would indicate that the powers which

are enumerated are illustrative in nature. The

Commission follows a procedure which is governed

by Section 17 for the purpose of making inquiries

upon which it has to take steps in conformity

with Section 18.

8.16. The petitioner in the current petition is concerned

with the usage of the expression "recommend"

in Section 18(a) can be treated by the State

Government or by an authority as merely an opinion

or a suggestion which can be ignored with impunity. In

our view, to place such a construction on the

expression "recommend" would dilute the efficacy of

the Commission and defeat the statutory object

underlying the constitution of such a body. Since no

appeal is provided by the Act against an order of the

Commission, the power of judicial review is available

when an order of the Commission is questioned.

Having regard to the importance of the rule of law

which is but a manifestation of the guarantee of fair

treatment under Article 14 and of the basic principles

of equality, it would not be possible to accept the

construction that the State Government can ignore the

recommendations of the Commission under Section

18 at its discretion or in its wisdom. That the

Commission is not merely a body which is to render

opinions which will have no sanctity or efficacy in

enforcement, cannot be accepted. This is evident from

the provisions of clause (b) of Section 18 under which

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the Commission is entitled to approach the Supreme

Court or the High Court for such directions, orders or

writs as the Court may deem fit and necessary.

Governed as we are by the rule of law and by the

fundamental norms of the protection of life and liberty

and human dignity under a constitutional order, it will

not be open to the State Government to disregard the

view of the Commission. The Commission has directed

the State Government to report compliance. The State

Government is at liberty to challenge the order of the

Commission on merits since no appeal is provided by

the Act. While a challenge to the order of the

Commission is available in exercise of the power of

judicial review, the State Government subject to this

right, is duty bound to comply with the order.

Otherwise the purpose of enacting the legislation

would be defeated. The provisions of the Act which

have been made to enforce the constitutional

protection of life and liberty by enabling the

Commission to grant compensation for violations of

human rights would be rendered nugatory. A

construction which will produce that result cannot be

adopted and must be rejected.

8.17. The petitioner hereby submits that the object for

enactment of the Act, 1993 being for better protection

of human rights and enforcing the constitutional

guarantee of life and liberty in consonance with the

international covenants adopted by the UN General

Assembly, this Hon’ble Court should adopt a

construction which would advance the object of the

Act.InTinsukhia Electric Supply Com. Ltd. Vs. State of

Assam &Ors. the Supreme Court held as follows:-

"118. The courts strongly lean against any construction which tends to

reduce a statute to futility. The provision of a statute must be so construed

as to make it effective and operative, on the principle "ut res majis valeat

quamperiat". ....."

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8.18. A similar view was taken in Commissioner of

Income Tax Vs. M/s Hindustan Bulk Carriers wherein

it was held as follows:-

"23. A construction which reduces the statute to a futility has to be

avoided. A statute or any enacting provision therein must be so

construed as to make it effective and operative on the principle

expressed in the maxim ut res magis valeat quampereat i.e. a

liberal construction should be put upon written instruments, so as

to uphold them, if possible, and carry into effect the intention of the

parties. [See Broom's Legal Maxims (10th Edition), page 361,

Craies on Statutes (7th Edition), page 95 and Maxwell on Statutes

(11th Edition), page 221.]

24. A statute is designed to be workable and the interpretation

thereof by a Court should be to secure that object unless crucial

omission or clear direction makes that end unattainable. (See

Whitner v. Commissioner of Inland Revenue (1926) AC 37 p. 52

referred to in Commissioner of Income Tax v. S. Teja Singh [AIR

1959 SC 352], GursahaiSaigal v. Commissioner of Income Tax,

Punjab [AIR 1963 SC 1062].

25. The Courts will have to reject that construction which will

defeat the plain intention of the legislature even though there may

be some inexactitude in the language used. (See Salmon v.

Duncombe (1886) 11 AC 627 p. 634 (PC), Curtis v. Stovin (1839) 22

CBD 513 referred to in S. Teja Singh's case (Supra).

26. If the choice is between two interpretations, the narrower of

which would fail to achieve the manifest purpose of the legislation,

we should avoid a construction which would reduce the legislation

to futility, and should rather accept the bolder construction, based

on the view that Parliament would legislate only for the purpose of

bringing about an effective result. (See Nokes v. Doncaster

Amalgamated Collieries (1940) 3 All E.R. 549 (CL) referred to in Pve

v. Minister for Lands for NSW (1954) 3 All ER 514 (PC). The

principles indicated in the said cases were reiterated by this Court

in Mohan Kumar Singhania v. Union of India (AIR 1992 SC 1)."

8.19. The state has the obligation to protect victim’s right to life.

8.20. It is humbly submitted by the petitioner that every

nation has a written or unwritten constitution

functioning on conventions gives significance and

importance and in fact the primary concern to the life

and personal liberty of the person. In most of the

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constitutions, right to life and liberty so also in case of

violation so also in case of violation of those core

rights, the aggrieved person has the right to move the

appropriate court or tribunal as the case may be for

the redressal of his grievances.

8.21. The petitioner bases him claims on Constitutional

Right, rights conferred under the International

Conventions where India is a signatory, Protection of

Human Right Act, 1993 to provide adequate and

sufficient protection to a citizen.

8.22. The annual reports published from the year 2005

till the year 2016 by the National Crime Record

Bureau reveal that the number of deaths of the people

caused due to the murder or culpable homicide not

amounting to murder with the motive of witchcraft has

increased to two-hundred.Further, the crimes other

than murder and culpable homicide not amounting to

murder have neither been recorded by State Crime

Record Bureau nor it has been published in any of the

reports of National Crime Record Bureau.

8.23. Article 21 of the Constitution of India has

recognised right to life and personal liberty as an

independent and indefeasible right available to a

citizen, deprivation of which can be only under due

process of law. It is an essential limb of human rights

also.

8.24. The Supreme Court of India in the case of

ParmanandKatara v. Union of India [AIR 1989 SC

2039]has held that :-

“7. There can be no second opinion that preservation of human life is

of paramount importance. That is so on account of the fact that once

life is lost, the status quo ante cannot be restored as resurrection is

beyond the capacity of man. The patient whether he be an innocent

person or be a criminal liable to punishment under the laws of the

society, it is the obligation of those who are in charge of the health of

the community to preserve life so that the innocent may be protected

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and the guilty may be punished. Social laws do not contemplate

death by negligence to tantamount to legal punishment.

8. Article 21 of the Constitution casts the obligation on the State to

preserve life. The provision as explained by this Court in scores of

decisions has emphasised and reiterated with gradually increasing

emphasis that position. A doctor at the government hospital

positioned to meet this State obligation is, therefore, duty bound to

extend medical assistance for preserving life. Every doctor whether at

a government hospital or otherwise has the professional obligation to

extend his services with due expertise for protecting life. No law or

State action can intervene to avoid/delay the discharge of the

paramount obligation cast upon members of the medical profession.

The obligation being total, absolute and paramount, laws of procedure

whether in statutes or otherwise which would interfere with the

discharge of this obligation cannot be sustained and must, therefore,

give way. On this basis, we have not issued notices to the States and

Union territories for affording them an opportunity of being heard

before we accepted the statement made in the affidavit of the Union of

India that there is no impediment in the law. The matter is extremely

urgent and in our view, brooks no delay to remind every doctor of his

total obligation and assure him of the position that he does not

contravene the law of the land by proceeding to treat the injured

victim on his appearance before him either by himself or being carried

by others. We must make it clear that zonal regulations and

classifications cannot also operate as fetters in the process of

discharge of the obligation and irrespective of the fact whether under

instructions or rules the victim has to be sent elsewhere or how the

police shall be contacted, the guideline indicated in the 1985 decision

of the Committee, as extracted above [ In para 3] , is to become

operative. We order accordingly”.

8.25. In a decision reported in the case of Deepak Bajaj

v. State of Maharashtra [AIR 2009 SC 628]it was

held that:-

“10. It must be remembered that every person has a fundamental

right to liberty vide Article 21 of the Constitution. Article 21, which

gives the right to life and liberty, is the most fundamental of all the

fundamental rights in the Constitution. Though, no doubt,

restrictions can be placed on these rights in the interest of public

order, security of the State, etc., but they are not to be lightly

transgressed”.

8.26. In the decision reported in Confederation of Ex-

Servicemen Assns. v. Union of India [(2006) 8 SCC

399],the question as to what life and liberty was

considered:-

“61. It cannot be gainsaid that the right to life guaranteed under

Article 21 of the Constitution embraces within its sweep not only

physical existence but the quality of life. If any statutory provision

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runs counter to such a right, it must be held unconstitutional

and ultra vires Part III of the Constitution. Before more than

hundred years, in Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] ,

Field, J. explained the scope of the words “life” and “liberty” in the

5th and 14th amendments to the US Constitution and proclaimed:

(US p. 142)

“By the term ‘life’, as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. …

By the term ‘liberty’, as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison”.

The abovementioned observation from the case of

Munn v. Illinois [94 US 113: 24 L Ed 77(1877)]

has also been quoted in the case of Kharak Singh

v. State of Uttar Pradesh [AIR 1963 SC 1295].

8.27. In the decision reported in the State of West

Bengal v. Committee for the Protection of

Democratic Rights [(2010) 3 SCC 571] it was held

that:-

“60. Article 21, one of the fundamental rights enshrined in Part III

of the Constitution declares that no person shall be deprived of his

“life” or “personal liberty” except according to the procedure

established by law. It is trite that the words “life” and “personal

liberty” are used in the article as compendious terms to include

within themselves all the varieties of life which go to make up the

personal liberties of a man and not merely the right to the

continuance of a person's animal existence. (See Kharak

Singh v. State of U.P. [AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 :

(1964) 1 SCR 332] )”.

8.28. In the decision reported in the Kehar Singh Case

[(1989) 1 SCC 204] has highlighted the paramountcy

of right to ‘life’ and ‘personal liberty’ and it was further

held that:-

“7.… To any civilised society, there can be no attributes more

important than the life and personal liberty of its members. That is

evident from the paramount position given by the courts to Article

21 of the Constitution. These twin attributes enjoy a fundamental

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ascendancy over all other attributes of the political and social

order, and consequently, the legislature, the executive and the

judiciary are more sensitive to them than to the other attributes of

daily existence. The deprivation of personal liberty and the threat

of the deprivation of life by the action of the State is in most

civilised societies regarded seriously and, recourse, either under

express constitutional provision or through legislative enactment is

provided to the judicial organ”.

8.29. In the decision reported in the Minerva Mills Case

[(1980) 3 SCC 625] it was further held that:-

“74. Three articles of our Constitution, and only three, stand

between the heaven of freedom into which Tagore wanted his

country to awake and the abyss of unrestrained power. They are

Articles 14, 19 and 21. Article 31-C has removed two sides of that

golden triangle which affords to the people of this country an

assurance that the promise held forth by the Preamble will be

performed by ushering an egalitarian era through the discipline of

fundamental rights, that is, without emasculation of the rights to

liberty and equality which alone can help preserve the dignity of

the individual”.

8.30. In the decision reported in the case of M. Nagaraj

[(2006) 8 SCC 212] wherein the court has observed as

under:-

“20. This principle of interpretation is particularly apposite to the

interpretation of fundamental rights. It is a fallacy to regard

fundamental rights as a gift from the State to its citizens.

Individuals possess basic human rights independently of any

constitution by reason of the basic fact that they are members of

the human race. These fundamental rights are important as they

possess intrinsic value. Part III of the Constitution does not confer

fundamental rights. It confirms their existence and gives them

protection. Its purpose is to withdraw certain subjects from the

area of political controversy to place them beyond the reach of

majorities and officials and to establish them as legal principles to

be applied by the courts. Every right has a content. Every

foundational value is put in Part III as a fundamental right as it

has intrinsic value. The converse does not apply. A right becomes a

fundamental right because it has foundational value. Apart from

the principles, one has also to see the structure of the article in

which the fundamental value is incorporated. Fundamental right is

a limitation on the power of the State. A Constitution, and in

particular that of it which protects and which entrenches

fundamental rights and freedoms to which all persons in the State

are to be entitled is to be given a generous and purposive

construction. In Sakal Papers (P) Ltd. v. Union of India [AIR 1962

SC 305] this Court has held that while considering the nature and

content of fundamental rights, the court must not be too astute to

interpret the language in a literal sense so as to whittle them down.

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The court must interpret the Constitution in a manner which would

enable the citizens to enjoy the rights guaranteed by it in the fullest

measure. An instance of literal and narrow interpretation of a vital

fundamental right in the Indian Constitution is the early decision of

the Supreme Court in A.K. Gopalan v. State of Madras [AIR 1950

SC 27 : 1950 Cri LJ 1383] . Article 21 of the Constitution provides

that no person shall be deprived of his life and personal liberty

except according to procedure established by law. The Supreme

Court by a majority held that ‘procedure established by law’

means any procedure established by law made by Parliament or

the legislatures of the State. The Supreme Court refused to infuse

the procedure with principles of natural justice. It concentrated

solely upon the existence of enacted law. After three decades, the

Supreme Court overruled its previous decision in A.K. Gopalan [AIR

1950 SC 27 : 1950 Cri LJ 1383] and held in its landmark judgment

in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that the

procedure contemplated by Article 21 must answer the test of

reasonableness. The Court further held that the procedure should

also be in conformity with the principles of natural justice. This

example is given to demonstrate an instance of expansive

interpretation of a fundamental right. The expression ‘life’ in Article

21 does not connote merely physical or animal existence. The right

to life includes right to live with human dignity. This Court has in

numerous cases deduced fundamental features which are not

specifically mentioned in Part III on the principle that certain

unarticulated rights are implicit in the enumerated guarantees”.

8.31. In the decision reported in the case of Ramlila

Maidan Incedent, In Re [(2012) 5 SCC 1],has laid

emphasis on Article 355 of the Constitution of India

and mentioned the security of the citizens without

violating human dignity as the primary task of the

state:-

“306. Article 355 [Ed.: Article 355 imposes a duty on the Union to

protect every State against external aggression and internal

disturbance and to ensure that the Government of every State is

carried on in accordance with the provisions of the Constitution.] of

the Constitution provides that the Government of every State would

act in accordance with the provisions of the Constitution. The

primary task of the State is to provide security to all citizens

without violating human dignity. Powers conferred upon the

statutory petitionerities have to be, perforce, admitted. Nonetheless,

the very essence of constitutionalism is also that no organ of the

State may arrogate to itself powers beyond what is specified in the

Constitution. (Vide GVK Industries Ltd. v. ITO [(2011) 4 SCC 36]

and NandiniSundar v. State of Chhattisgarh [(2011) 7 SCC 547 :

(2011) 2 SCC (L&S) 762 : AIR 2011 SC 2839] .)”.

8.32. Witch Identification, Branding and Accusation

affects the right to live with dignity and honour which

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is a fundamental right guaranteed under Article 21 of

the Constitution of India. Witch Identification,

Branding and Accusation generally occur in public

places. If certain positive efforts are made to solve this

problem, this could be effectively curbed. If, in case, no

efforts are made for curbing such a menace, it

sometimes proves disastrous. There have been several

instances where the victims of Witch Identification,

Branding and Accusation have gone through serious

psychological problem and even committed suicide. In

a comparatively similar instance affecting right to life

with dignity and honour, Hon’ble Supreme Court of

India in the case of Inspector General of Police v. S.

Samuthiram [(2013) 1 SCC 598],held that:-

“29. We may, in the facts and circumstances of this case, wish to

add some aspects which are also of considerable public

importance. We notice that there is no uniform law in this country

to curb eve-teasing effectively in or within the precinct of

educational institutions, places of worship, bus-stands, metro

stations, railway stations, cinema theatres, parks, beaches, places

of festival, public service vehicles or any other similar place. Eve-

teasing generally occurs in public places which, with a little effort,

can be effectively curbed. Consequences of not curbing such a

menace are, needless to say, at times disastrous. There are many

instances where girls of young age are being harassed, which

sometimes may lead to serious psychological problems and even

committing suicide. Every citizen in this country has the right to live

with dignity and honour which a fundamental right is guaranteed

under Article 21 of the Constitution of India. Sexual harassment

like eve-teasing of women amounts to violation of rights guaranteed

under Articles 14, 15 as well. We notice that in the absence of

effective legislation to contain eve-teasing, normally, complaints are

registered under Section 294 or Section 509 IPC”.

8.33. The Bureau of Police Research and Development in

one of its publications has stated ‘functions, roles and

duties of police in general’ wherein it has been

mentioned that the role and functions of police in

general are to uphold and enforce the law impartially

to protect life, liberty, property, human rights and

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dignity of the members of the public.1 Further, to

prevent crimes, and reduce the opportunities for the

commission of crimes through their own preventive

action and measures as well as by aiding and

cooperating with other relevant agencies in

implementing due measures for prevention of crimes.

It is the failure of Madhya Pradesh Police Department

in following the roles and functions in the prevention

of witch-hunting. It is the failure of Madhya Pradesh

Police Department in following the roles and functions

in the prevention of witch-hunting. That, it is the

failure of the police in identifying problem and

situations, aid an individual who is in danger of

physical harm, cooperate with other relevant agencies

for the prevention of the crime. Further, the police

department has also failed in creating and maintaining

a feeling of security in the community. That, such

behaviour of the police department hampers the right

to life with human dignity, fundamental right

guaranteed under Article 21 of the Constitution of

India.

8.34. It is humbly submitted by the petitioner that Article

51 of the Constitution of India states that the state is

having an obligation under Directive Principles of State

Policy which obligates that the state should

“endeavour to.... foster respect for international law and

treaty obligation in the dealings of organized people

with one another.”2This provision provides “a self-

evident directive” that the state must comply with

international law. The Supreme Court of India in the

case of Kesavananda Bharti Sripadagalvaru v.

State of Kerala and Anr. [AIR 1973 SC 1461] held

1FUNCTIONS, ROLES AND DUTIES OF POLICE IN GENERAL , FUNCTIONS, ROLES AND DUTIES OF POLICE IN

GENERAL , http://bprd.nic.in/WriteReadData/userfiles/file/6798203243-Volume 2.pdf (last visited Aug 3,

2018). 2INDIA CONST. art. 51.

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that “it is the duty of these courts to construe our

legislation so as to be in conformity with international

law and not in conflict with it.”3 Elsewhere, the

Supreme Court in the case of Gramophone Company

of India, Ltd. v. Birendra Bahadur Pandy [1984

SCR (2) 664]has stated:-

“whatever has received the common consent of civilised nations

must have received the assent of our country, and that to which we

have assented along with other nations in general may properly be

called international law, and as such will be acknowledged and

applied by our municipal tribunals when legitimate occasion arises

for those tribunals to decide questions to which doctrines of

international law may be relevant.”

8.35. It is humbly submitted that Article 51 of the

Constitution of India and Supreme Court’s

jurisprudence require it to ensure that the state is in

compliance with its international obligations as well as

with its obligation under the Constitution of India and

the domestic laws.

8.36. The states within India must comply with

international law. The Directive Principles of State

Policy, which include Article 51, are “fundamental in

the governance of the country,” and the Supreme Court

in the case of Akhil Bhartiya SoshitKaramchari

Sangh v. Union of India [1981 SCR (2) 185] has said

that the states must apply the Principles. This means

that states too must “foster respect for international

law and treaty obligations.”Thus, International law is

not merely binding on the national government; rather,

states too must ensure, through legislative and

executive acts and court decisions that they are in

compliance with international treaties and covenants.

Therefore, the international obligation to prevent

witch-hunting extends to the State of Madhya Pradesh

as well. Furthermore, India’s international treaty

3

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obligations to prevent witch-hunting are consistent

with Indian constitutional guarantees of right to life,

equality and the remedies for the infringement of

rights. Various provisions of the Constitution of India

mirror provisions in the Convention on Elimination of

All Forms of Discrimination Against Women, the

International Covenant on Civil and Political Rights,

the International Covenant on Economic, Social, and

Cultural Rights, and the Convention Against Torture.

In order for the state of Madhya Pradesh to be in

compliance with the obligations under these

conventions and covenants, it must interpret the

rights guaranteed in the Constitution such that they

conform to the guarantees under International law.

Indeed, the Supreme Court of India in the case of

Vishaka v. State of Rajasthan [AIR 1997 SC 3011]

has recognised that “the contents of the International

Conventions and norms are significant for the purpose

of interpretation” of rights already guaranteed in the

Constitution of India.For the foregoing reasons, the

state should consider and utilise the international law

and legal principles set forth herein to provide

adequate prevention of witch-hunting and protection

for its victims.

8.37. India has an obligation to protect citizen’s right to

life, which is codified in the Universal Declaration of

Human Rights and the International Covenant on Civil

and Political Rights. Under the Universal Declaration

of Human Rights, now widely recognised to be a

customary international law, Article 3 of the

convention provides that “Everyone has the right to life,

liberty and security of person.” Further, under Article 6

of the International Covenant on Civil and Political

Rights, every human being has a right to life, and no

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one “shall be arbitrarily deprived of his life.”. Similarly,

the United Nations General Assembly’s Resolution

Extra-judicial, Summary, or Arbitrary Executions,

adopted in the year 2009, urges the states to, “Ensure

that the practice of extrajudicial, summary, or arbitrary

executions is brought to an end and ...... take effective

action to prevent, combat, and eliminate the

phenomenon in all its forms and manifestations.”

8.38. The substance of the right requires affirmative

measures to ensure its protection. The United Nations

Human Rights Commission in its General Comment

No. 6,in noting that the right to life is “the supreme

right from which no derogation is permitted even in

time of public emergency,” the committee stated that

parties have an affirmative obligation to take measures

to prevent and punish deprivation of life by criminal

acts. Further, although the text of the Convention on

Elimination of All Forms of Discrimination Against

Women does not describe the right to life, General

Comment No. 19 to Convention on Elimination of All

Forms of Discrimination Against Women notes that

gender- based violence that impairs or nullifies the

enjoyment by women of human rights and

fundamental in discrimination, and these rights

include the right to life.Consequently, these covenants

in combination impose an obligation on the State of

Madhya Pradesh to take affirmative measures to

prevent gender- based violence, especially when

violence often results in murder or culpable homicide

not amounting to murder.

8.39. The State of Madhya Pradesh also hasan obligation

to prevent torture, cruel, inhuman, or degrading

treatment. The prohibition against torture is

considered a jus cogens norm that the State of Madhya

Pradesh is bound by. While, India has signed but not

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ratified the Convention Against Torture and Other

Cruel, Inhuman, or Degrading treatment, its signature

of Convention Against Torture under the Vienna

Convention on the Law of Treaties obliges India to

refrain from acts which would defeat the object and

purpose of the treaty.Further, Article 7 of the

International Covenant on Civil and Political Rights,

which India has acceded to, prohibits “cruel, inhuman,

or degrading treatment.” Under its international

obligation, therefore, the State of Madhya Pradesh also

has the obligation to prevent torture, cruel, inhuman,

or degrading treatment.

8.40. The State of Madhya Pradesh has failed to protect

its citizen’s right to life, as it is not taking effective

measures to protect its citizen against arbitrary and

preventable losses of life. As noted above, over the last

twelve years, witch-hunts have taken the lives of

approximately two hundred people in the State of

Madhya Pradesh. Further, the statistics of crimes

related to witch-hunting is increasing year-by-year.

That witch-hunting does not always result in death;

the right to life has been construed broadly. In fact, as

noted above, the United Nations Human Rights

Committee has opted to interpret the right broadly. As

a result, it is likely that even in those instances where

witch-hunting does not result in killing, but instead

result in witches beaten, raped, tortured, imprisoned,

and driven from their villages, thus, the State of

Madhya Pradesh infringes on this expansive definition

of the right to life.

8.41. Under the relevant covenants, the State of Madhya

Pradesh has failed in its obligation to take affirmative

measures to combat the practice, as it is obliged to.

Despite recommended that the state “adopt

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appropriate measures to eliminate the practice of witch-

hunting, prosecute and punish those involved, and

provide for the rehabilitation of, and compensation to,

victimized women,” the State of Madhya Pradesh failed

to take these measures into consideration. Further,

although the Committee recommended that the

measures taken should be “based on an analysis of its

causes, including control over land,” the State of

Madhya Pradesh has failed to collect any data or

undertake any analysis on the issue, and has thus

failed of its positive obligations.

8.42. Indeed the practise of witch hunting in the State of

Madhya Pradesh has been identified as the arbitrary

deprivation of life. Highlighting the rising incidence of

witchcraft related killings, the Special Rapporteur on

Extra-Judicial, Summary, or Arbitrary Killings noted

the need for treatment of killing based on accusation

of witchcraft as murder, properly investigation and

prosecution of such crimes, and effective prophylactic

measures to prevent the practise.

8.43. The state has an obligation to develop and promote

scientific temper among its citizens.

8.44. As per Article 51-A clause ‘h’ of the Constitution of

India, it is the duty of every citizen to develop scientific

temper, humanism and the spirit of inquiry. The

practice of witch-hunting has become a social and

religious business for the local doctors, medicine men/

ojhas. The ojhas take advantage of the situation and

create difference villagers to fulfil their materialistic

requirements. The ojhas exploit the villagers socially,

economically and physically to satisfy their egotistic

and selfish desires. The ojhas prefer to manipulate the

people through the advertisements made in

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newspapers, public places and online platform. There

exist central legislations and regulations addressing

the promotions of these superstitious activities. The

Drug and Magic Remedies (Objectionable

Advertisements) Act, 1954 is one among them.Its

Statement of Object and Reasons stated that it was an

Act to “control the advertisement of drugs in certain

cases, to prohibit the advertisement for certain

purposes of remedies alleged to process magic utilities

and to provide for matters connected therewith.” Apart

from banning misleading drug advertisement and

advertisements of certain categories of drugs, section 3

and section 5 of the Act also prohibited the

advertisements of magic remedies with respect to any

of the disease mentioned in the schedule. Magic

remedies for the purpose of the Act included any

talisman or charm that alleged to possess miraculous

power for treatment or prevention of a disease. The

schedule is wide in its ambit and mentions most of the

disease prevalent in India. The advertisements of

drugs claiming to have supernatural healing forces

therefore are banned in India. The Act is little enforced

however, which contributed to the need for

comprehensive legislation that tackles these

issues.The harmful consequences of propagation of

superstitious beliefs through the media have also been

addressed by the legislature. The Cable Television

(Regulation) Act, 1995states that transmission or re-

transmission of all programme have to be in

conformity with the programme code. Rule 6 of Cable

Television Rules 1994 contains the programme code.It

stated that no programme should be carried in the

cable service that, inter alia “encourages superstition

or blind belief”. The Press Council of India after certain

ratification published Norm of Journalistic Conduct in

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the year 2010 in order to maintain fairness and

accuracy in the advertisement published and also to

avoid the publications relating to astrological

prediction.Rule 1 of the Code mandates the publisher

to eschew publication of inaccurate, baseless,

graceless, misleading or distorted material. Further, it

is also the duty of the press to expose the wrong doing

that come to their notice. Rule 36 sets the guideline

with reference to Advertisement by the publisher. It

states that “Newspapers should not publish an

advertisement containing anything which is unlawful

or illegal, or is contrary to public decency, good taste

or to journalistic ethics or propriety”. Furthermore,

Rule 38 of the Code set the guideline with reference to

advertisement related to astrological prediction. The

rule states that “The promotion of astrological

prediction and superstitious practices is likely to

produce an unsettling effect on the minds of the

readers, and is thus undesirable.”The aforesaid report

by National Commission for Women revealed that

generally in rural and tribal areas the ojhas take bribe

to accuse women as a witch.

8.45. In HulikalNataraju v/s State of Karnataka

[2010 SCC OnLineKar 532]a prominent rationalist

conducted programs exposing fraudulent godmen. He

stated in a TV program that certain phenomenon such

as the light appearing on makara sankranthi was

false. A complaint was lodged against him under

Section 298 of the Indian Penal Code stating that he

had wounded Hindu religious beliefs, and the

rationalist submitted a quashing petition before the

Karnataka High Court. In the decision granting the

petition, Justice Nagamohan Das said that even if the

entire contents of the complaint were taken, it did not

constitute an offence under Section 298. He traced the

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longstanding traditions of rationalist thinking in India,

and said that the freedom of speech and expression

included the freedom to criticize. The judgment also

discusses the evils of superstition, which it

characterizes as a blind belief of faith not based on

reason, knowledge or experience. While the daily lives

of many Indians are governed by superstitions, there

are some that are “violent, dangerous, destructive,

harmful and inhuman”. The judgment cites examples

of human sacrifice and witch-hunting, and goes on to

say:

“15. There are superstitions which are violent, dangerous,

destructive, harmful and inhuman. The superstition of human

sacrifice still continues. The practice of torturing women to death in

the name of ‘Witches’ or ‘Sorceress’ is still continuing. The greatest

damage done by these harmful superstitions is that they deflect

attention from the primary cause and lead to defeatist attitude of

helpless acceptance. They stand in the way of unearthing the root

cause and undertaking adequate remedial steps. They made the

ignorant people weak and driven them for mental laziness. They

deprived the people of all grandeur and historical energies. They

subjected man to external circumstances, instead of elevating man

to be the sovereign of circumstances. They transformed a self-

developing social state into never changing natural destiny. These

superstitions are perpetuating and promoting exploitation, slavery,

untouchability, inferiority complex, superiority complex, caste,

creed, gender, and varna based inequalities. They became

instruments in the hands of few to exploit, cheat and deceive the

ignorant people.”

8.46. Similarly, the case of Nirmaljit Singh Narula

v/sYashwant Singh [(2012) 132 DRJ 370]was a

defamation case in which the plaintiff was a Godman

and the defandants were the authors of allegedly

defamatory articles against him that had received

widespread attention. The judgment of the Delhi High

Court spoke at length about fraudulent godmen and

‘babas’:

“…… the mystical sadhus and the godmen have not left the

picture the difference may be that some of the sadhus travel by a

private jet and have a turnover worth crores making even the

business tycoons feel jittery… The God Market that has come

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about in India has struck a chord abroad and the Babas and

saints, innumerable and diverse have tutelage they boast of

including a nobody to celebrity..... anyone who can claim to heal

or provide a shortcut to alleviate their pain and suffering occupies

the stature of God in their lives.”

About the presence of godmen on broadcast

networks, the court said that “The SpritualBabas

and Sadhus who have entered into our lives through

the electronic media and other websites are no

exception to the said self-restraint norms and

regulations.” The court granted a conditional

injunction whereby the respondents were restrained

from publishing about the plaintiff as long as the

plaintiff refrained from giving “absurd and illogical

solutions”.

8.47. The Supreme Court in the case of C.

MasilmaniMudaliar v/s Idol of Sri

SwaminathaswamiSwaminathaswamiThirukoli[(1

996) 8 SCC 525]has stated that:-

“22.Article 15(3) of the Constitution of India positively protects such

Acts or actions. Article 21 of the Constitution of India reinforces

"fright to life". Equality, dignity of person and right to development

are inherent rights in every human being. Life in its expanded

horizon includes all that give meaning to a person's life including

culture, heritage and tradition with dignity of person. The fulfilment

of that heritage in full measure would encompass the right to life.

For its meaningfulness and purpose every woman is entitled to

elimination of obstacles and discrimination based on gender for

human development, women are entitled to enjoy economic, social,

cultural and political rights without discrimination and on footing of

equality. Equally in order to effectuate fundamental duty to develop

scientific temper, humanism and the spirit of enquiry and to strive

towards excellence in all spheres of individual and collective

activities as enjoined in Article 51-A(h) and (J) of the Constitution of

India, facilities and opportunities not only are to be provided for,

but also all forms of gender based discrimination should be

eliminated. It is a mandate to the State to do these acts. Property is

one of the important endowments or natural assets to accord

opportunity, source to develop personality, to be independent, right

to equal status and dignity of person. Therefore, the State should

create conditions and facilities conducive for women to realize the

right to economic development including social and cultural

rights.”.

Thereby, it is the duty of the state to come up with

certain stringent guidelines so that the scientific

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temper of the citizens living in the State of Madhya

Pradesh could be developed.

8.48. The state has an obligation to adopt legislative

measures to protect against witch-hunting.

8.49. India has an international obligation to adopt

legislative measure to protect its citizens from the

practice of witch-hunting. This obligation is expressed

in various international covenants. India is a signatory

to the Universal Declaration of Human Rights to give

protection to its citizens from discrimination and all

sorts of violence against them under Article 5 of the

aforesaid convention. Besides, Article 2 of the

International Covenant on Civil and Political Rights

provides that “[w]here not already provided for by

existing legislative or other measures, each state party

to the present covenant undertakes to take necessary

steps....... to adopt such laws or other measures as may

be necessary to give effect to the rights recognised in

the present covenant.”The Convention on Elimination

of All Forms of Discrimination Against Women resolved

that the countries, which have ratified the same,

should take appropriate steps to eliminate all forms of

discrimination against women. Article 5 clause ‘a’ of

the Convention on Elimination of All Forms of

Discrimination Against Women further provides that

the state shall take appropriate measures to modify

social and cultural pattern of conduct of men and

women.

8.50. The Committee of Elimination of Discrimination

against Women of the United Nations in the 51st

Session held between 13th February to 2nd March,

2012 has given, its concluding observations on the

elimination is discrimination against women.The

committee also recommended eliminating stereotype

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and harmful practice.The committee observed as

follows:-

“21. The Committee recognizes the rich culture & tradition? of the

State party & their importance in daily life. However, the

Committee expresses its serious concern about the persistence of

harmful norms, practices & traditions, patriarchal attitudes &

deep-rooted stereotypes, regarding the roles, responsibilities &

identities of women & men in all spheres of life, as well as the

State party's limited efforts to address such discriminatory

practices.-These include, in particular, polygamy, bride price

(lobola), & in certain regions, virginity testing & witch hunting. The

Committee is concerned that such customs & practices perpetuate

discrimination against women & girls & that they are reflected in

women's disadvantageous & unequal status in many areas,

including education, public life, decision-making & in the

persistence of violence against women, & that, thus far the State

party has not take sustained measures to modify or eliminate

stereotypes & harmful practices.

22. The Committee urges the State party to:

(a) Put in place, without delay, a comprehensive strategy to modify

or eliminate patriarchal attitudes & stereotypes that discriminate

women in conformity with the provisions of the Convention. Such

measures should include efforts, in collaboration with civil society

& community & religious leaders to educate & raise awareness of

this subject, targeting women & men at all levels of the society;

(b) More vigorously address harmful practice by expanding public

education programmes & by effectively enforcing the prohibition of

such practices, in particular, in rural areas;

(c) Use innovative measures that target media people to strengthen

understanding of the equality of women & men &through the

educational system to enhance a positive & non-stereotypical

portrayal of women; &

(d) Monitor & review the measures taken in order to assess their

impact & to take appropriate action.”

8.51. It is clear that the Committee of Elimination of

Discrimination against Women also endorse witch-

hunting as one of the harmful practices. The state

should formulate preventive strategy to eliminate such

practice. The similar observation has been made by

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Orissa High Court in the case of SashipravaBindhani

v. State of Orissa and Ors [(2012) 117 AIC 883].

8.52. The decision reported in the case of Vishaka v.

State of Rajasthan [(1997) 6 SCC 241] wherein the

Supreme Court has taken into consideration the

provisions of the Convention on Elimination of All

Forms of Discrimination Against Women and held as

follows:-

“16. In view of the above, & the absence of enacted law to provide

for the effective enforcement of the basic human right of gender

equality & guarantee against sexual harassment & abuse, more

particularly against sexual harassment at work places, we lay

down the guidelines & norms specified hereinafter for due

observance at all work places or other institutions, until a

legislation is enacted for the purpose. This is done in exercise of the

power available under Article 32 of the Constitution for enforcement

of the fundamental rights & it is further emphasized that this

would be treated as the law declared by this Court under Article

141 of the Constitution.”

8.53. TenseenPoonawalla case

8.54. Witch-hunting, which is prevalent in several states

leads to dispossession, torture and murder but as of

date, although India is signatory to the Convention on

Elimination of All Forms of Discrimination Against

Women no steps have been taken to enact appropriate

law to curb the menace of witch-hunting, which is

prevalent in the state. States like Bihar, Jharkhand,

Chhattisgarh, Maharashtra, Rajasthan and Odisha

have already taken steps to eradicate such practices

but the State of Madhya Pradesh has not taken any

steps with regards to eradicating such practices.

8.55. It is, therefore, urged by the petitioner that in view

of the fact that there is no legislation to tackle the

problem of witch-hunting, this court should give

direction to the State Government to introduce

appropriate law before the legislature and in

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interregnum provide guidelines to prevent witch-

hunting in the State of Madhya Pradesh.

9. DETAILS OF REMEDIES EXHAUSTED.

The Petitioners declares that he has no alternative or equally

efficacious remedy except to approach this Hon’ble Court and

file present petition.

10. DELAY IF ANY, IN FILING THE PETITION, AND EXPLANATION

THEREOF.

There is no delay requiring special explanation.

11. PRAYERS.

In the views of the facts and circumstances stated above, it is

prayed that this Hon’ble Court in public interest may be pleased

to:-

11.1. Direct the state government to come up with

legislative or administrative measure in order to curb

this practise;

11.2. Direct the National Crime Record Bureau and State

Crime Record Bureau to record and prepare the

statistical record of all the specific crime;

11.3. Direct the state authorities to start educational and

social awareness campaigns in order to make people

beware from this superstitious practise;

11.4. Direct the state authorities to prevent the promotion

and publication of the misleading advertisements of

ojhas in any form of publication;

11.5. Direct the state authorities to impose heavy

penalties on the person who is preparing, printing, and

publicising the material which is ultimately leading to

the advertisement of ojhas;

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11.6. Issue such other writ, direction, or order which this

Hon’ble Court may deem fit and proper under the facts

and circumstances of the case.

12. INTERIM ORDER, IF PRAYED FOR.

In the views of the facts and circumstances stated above, it is

prayed that this Hon’ble Court in public interest may be pleased

to:-

12.1. Direct the stateto come up with any legislative or

administrative measures for the prevention and

prohibition of witch-hunting in the State of Madhya

Pradesh in the form of interim relief.

13. CAVEAT:

That, no notice of lodging a Caveat by the opposite party is

received.

Indore Submitted by

Dated: //2019


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