ON January 28, 2019, the Orissa High Court directed the State government to take immediate steps to curb the practice of social boycott or ostracism prevalent in the State of Odisha.

In Indian caste-based society, where an individual or families position within the community is a source of identity and belonging, ostracism or social boycott is akin to living death.

 

Background of the case

 

The public interest litigation (PIL) was filed by a social activist and practising lawyer from Sambalpur district of Odisha, Mohammed Mushtaq Ansari. In his petition, he highlighted the practice of ostracism/social boycott in the state of Odisha and pointed out the blatant failure of State mechanisms in wiping out the inhumane practice.

In PIL, the petitioner contended that he “has made a serious attempt to retrain the practice of ostracism which is prevailing in the State of Odisha”. The petitioner emphasised the urgent need “for action for the public at large boycotting an individual or family socially”, further contended that “it requires serious attention and immediate action as well by the State authorities”.

 

Social boycott/Ostracism

 

“Social boycott” is a collective act of refusal by society to involve a person in the commercial and social relations with the objective to force the individual to voluntarily leave the society. “Ostracism” is similar, but it is eviler. Ostracism refers to a forcible expulsion of a person from society for any reason. It is often accompanied by the confiscation of his/her property.

Both, social boycott and ostracism are the most formidable weapons in the hands of caste-based corrupt mindsets. It’s a tool used by influential members within communities to punish anyone who does not conform to their rules. It is a rampant practice in many states of India, including Maharashtra, Chattisgarh, Odisha, Assam, Bengal, Uttar Pradesh, Haryana and Rajasthan.

 

A brief legal history of ‘social boycott’

 

In 1928, the Government of Bombay commissioned the Starte Committee to study the status of the depressed classes. The Committee in its report underlined the practice of “social boycott” prevalent in the state and reported that:

“..We do not know of any weapon more effective, than this social boycott which could have been invented for the suppression of the Depressed Classes. The method of open violence pales away before it, for it has the most far-reaching and deadening effects. It is more dangerous because it passes as a lawful method consistent with the theory of freedom of contract…”

In 1947, about twenty years after the Starte Committee Report, B R Ambedkar in his submission, titled ‘States and Minorities’, to the Sub-Committee on Fundamental Rights of Constituent Assembly provided the first legal redress against the corrupt practices of “social boycott”.

Ambedkar’s submission, States and Minorities, is the strongest articulation of social and economic rights. In this submission, Ambedkar drafted articles on ‘Fundamental rights of Citizens’ and ‘Admission of States into the Union’. The most striking section of the document is ‘Remedies against Invasion of Fundamental Rights’ – where Ambedkar advocates for ‘State Socialism’ and ‘Economic Democracy’.

Ambedkar under Clause 3 Article II Section III drafted an article titled ‘Protection against Social Boycott’, under which he defined ‘Boycott’, and declared it a cognizable offence and directed the Union legislature to make laws prescribing a punishment. The text of Clause 3 is largely borrowed from the Burma Anti-Boycott Act, 1922.

However, Ambedkar’s proposed provisions on “social boycott” did not find its way into the Constitution of India, 1950. There was no debate in the Constituent Assembly on the standalone category of “social boycott”. However, the Assembly did debate on the problem of social discrimination  extensively, especially in the context of Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth).

The final text of Articles 15, 17 and 25 of the Constitution together constitute a code that is a somewhat attenuated and diluted version of Ambedkar’s original and radical proposals – to have a Constitution that provided not only individual freedom and freedom of community but also freedom from the community.

 

Sardar Syedna Saifuddin v. State of Bombay

 

In 1949, the Bombay Province, which then comprised Bombay and Gujarat, had passed the Bombay Prevention of Excommunication Act, 1949. However, in 1951, the then leader of the Dawoodi Bohras community, Syedna Taher Saifuddin, challenged it in the Bombay High Court, arguing that the Act infringed upon his constitutional freedom of religion, under Article 25 (Freedom of conscience and free profession, practice and propagation of religious) and Article 26 (Freedom to manage religious affairs), to manage his own affairs in matters of religion and also to discipline “errant” members of his community as the religious head. The Bombay High Court upheld the Act of 1949.

The Syedna then moved to the Supreme Court challenging the decision of the High Court. In 1962, a five-judge bench of the Supreme Court with 4:1 ratio struck down the Bombay Prevention of Excommunication Act, 1949 as unconstitutional.

The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26 of the Constitution, and was not saved by social welfare or reform exception provided under Article 25 since it outlawed even those excommunications that were made purely on religious grounds.

The Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition, and Redressal) Act, 2017

 

Maharashtra is the only state in India to have enacted such a law; however, the legal provision itself is not unprecedented. The Act, which can be invoked along with other relevant sections of the Indian Penal Code, stipulates against an assembly with the view or intention to deliberate on imposing a social boycott on any member of a community and terms such a gathering “unlawful”.

The Act provides that every person convening and organising such assembly and every member participating in it could be punishable with a prison term of up to three years and a penalty of up to rupees one lakh, or both. The Act adds that any action of social boycott, from the date of commencement of this Act, would be considered void and of no effect. Finally, the Act stipulates that any caste panchayat, which imposes or leads to the imposition of social boycott, would be deemed to have committed an offence liable to be punished. Any offence punishable under it would be cognizable, bailable and triable by a first-class judicial magistrate.

 

Reported incidents of ‘social boycott’

 

In Mumbai, the last case of a social boycott was in 2008 when Dawoodi Bohra family complaint that they were excommunicated for daring to file a complaint against a Mosque Trust which owned the premises from where they ran a shop. The family was boycotted and had stopped getting invitations to weddings and other functions in the community. The children were debarred from the religious school run by the trust and the elders were stopped from entering the local mosque. To, end this situation, the family was asked to withdraw the property case. The social boycott was ended but the family is facing the litigation.

In 2008 riots happened, triggered by the killing of Kandhamal’s popular Hindu leader, Swami Laxmanananda Saraswati. The Kandha Hindus suspected the missionaries to be behind his murder and began to target Christian families all over Kandhamal. Their homes were burnt down and later when they returned they had to face social boycott.

In 2011, Manik Hatkar of Paregaon village in Ahmednagar district was ostracised by the Tirumali Samaj Jat Panchayat, a nomadic tribe, after his inter-caste marriage. “The panchayat also ostracised 10 other families for keeping social contacts with me.

In states such as Odisha, Jharkhand and Assam, the social boycott is linked to another terrible practice in the form of witch-hunting. “Villagers label a woman a witch, blame her for natural calamities, even health hazards, and throw her out of the village or stone her to death. Her family members, especially her children, are targeted too,” says Bhubaneswar-based advocate Sashiprava Bindhani, who co-drafted the Odisha Prevention of Witch-Hunting Act, passed in 2013.

In 2017, a Bhubaneswar based family of a minor tribal girl, who was raped by the headmaster of a school in Odisha’s Koraput district, was socially boycotted by the community.

Orissa High Court direction

 

In the present PIL in question,  the Orissa High Court taking serious note on the growing corrupt and evil practices of “social boycott/ostracism” in the state, in its order said that “no doubt, the State Government has attempted partially in this regard and no doubt there is serious requirement of endeavour to overreach unethical practice prevailing in the State of Odisha”.

The Orissa High Court ruled that “even though we have restriction to direct the State Government to have legislation in that regard, however, we direct the State Government to take immediate steps to prevent the practice of social boycott prevalent in the society under the prevailing law, may be under IPC or any other law for the time being in force whenever offence is committed. The citizens at large should be protected from the menace of such evil practice”.

The Court asserted that “the action of the public at large booting an individual or family socially, requires serious attention and immediate action as well by the State authorities. No doubt, the State Government has attempted partially in this regard and no doubt there is a serious requirement of endeavour to overreach unethical practice prevailing in the State of Odisha”.

The Orissa High Court then directed the State to take immediate steps to prevent ostracism and social boycott under the laws currently in force.