K Chakra Pani
On 26th February 2024, the Assam Legislature passed the Assam Healing (Prevention of Evil) Practices Bill, 2024, amid heated debates and discussions. The Bill passed is intended to eradicate magical healing and non-scientific practices done with sinister motives. It criminalises the commission of any healing practice or magical practice which is derogatory to public health and injures the victim of such practice. This is a relatively new topic over which a bill/law is made, considering the Government’s will to interfere in religious matters, not only at a State level but also at the Union level. It has raised significant opposition from other communities, majorly from the Christian community, as they feel it is a targeted move on them, affecting their freedom to practise their religion.
Brief about the Bill
The Preamble of this Bill puts forth that its aim is to ‘bring social awakening in the society’ and ‘protect human health against the evil and sinister practices’. It also involves the protection of human health against non-scientific healing practices with ulterior motives which destroy the fibre of the public health of society.
Section 2(a) defines ‘evil practices’ as the ‘commission of any act of healing practice and magic healing, by any person, with a sinister motive to exploit common people’.
Section 2(c) defines ‘healing and healing practices’ as a traditional approach to healing the body, mind and spirit of a human being with traditional medicine and art, including other remedies like diagnosis, ailment, etc.
Section 2(f) defines a ‘victim’ as a person who is grievously harmed or injured physically or mentally or exploited financially or whose dignity is offended by the commission of an offence under this Bill.
Section 3 provides for the prohibition of healing practices for the treatment of certain diseases. No person must involve or indulge themselves in a healing practice by giving a false impression of treatment to cure the troubles or diseases.
Section 4 prohibits the advertising of healing practices that make a false claim or mislead to any particular material.
Section 5 criminalises the commission of any act of inhuman, evil or magical healing.
Section 7 provides for the overriding effect of the Bill over the Code of Criminal Procedure 1973 or the Bharatiya Nagarik Suraksha Sanhita 2023.
Countering the Criticisms of the Bill
Amidst significant debates and opposition, the Assam Legislature passed this Bill, which is now pending before the Governor for its assent. The timing and origin of this Bill is controversial, yet it is to be considered. The background includes the specific targeting of Christian institutions by Hindu outfits, criticising their practices and symbols to stop ‘anti-Bharat activities’. This is a relatively religious conflict that can bring up different consequences having coloured interpretations, and the passing of the Bill is seen as one with a possible coloured interpretation.
There is an inherent conflict between the opinions of the Christian community and the intentions of the Bill. The Angami Baptist Church Council (ABCC) claims that this is an attempt to target Christians. Christians practise scientific as well as divine practices to heal people, and there is no concept of ‘magical healing’. The Christian community fails to understand that the term ‘magical healing’ is used in the Bill with a different connotation and intention, which has no relation to attacking the Christian community’s practices. The term ‘magical healing’ is mentioned with clarity in Section 3 of the Bill, putting forth that magical healing is prohibited if it gives a ‘false impression of treatment to cure diseases, pain or trouble to the human health’.[1] The provision does not criminalise every healing which is ‘magical’ or ‘non-scientific’; rather, it penalises or prohibits healing practices that are inhuman, sinister, or with any other intention to harm or deceive the victim or public. The element of mala fide intention is required to prohibit an act of magical healing. Mere magical healing is not punishable.
The Chief Minister of Assam, Himanta Biswas Sarma, clarified that the Bill is intended to create a ‘proper religious balance’ and is not to upset or suppress any religion or its practices. The healing, that is being targeted through the Act, is that which is used ‘to convert tribals into different religions’.[2]
There may be a double-edged sword through this Bill; it can target Christian practices or it can sincerely target deceptive healing practices. But with the provisions of the Bill duly followed with time, there is no scope to interfere or prohibit Christian healing practices.
The conflict within the Government
Along with the Christian community, Deputy Chief Minister TR Zeliang questioned the intention and requirement of the Bill at this juncture. He contended that the Bill undermines federalism by criminalising healing, which is an integral part of the Christian faith and it goes against the State’s duty to defend faith and beliefs under the scope of freedom of religion under Articles 25 to 28 of the Indian Constitution. It is indeed the State’s duty to protect and uphold the right to freedom of religion within Articles 25 to 28. Article 25(2)(a) provides:
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;[3]
The Bill seeks to prohibit a secular practice – sinister healing practices – and this may be associated with the practice in Christianity. There is no complete prohibition on the exercise of healing practices through this Bill; rather there is a restriction on the acts of healing which are inhuman, sinister, or with an aim to deteriorate or affect the health of the public. Ironically, the same Bill that ‘affects religious rights’ is an exercise of the power to protect religious rights under the very same Constitutional provisions.
The very act of the Deputy CM to go against the Bill raises a concern regarding the unity within the Assam Government. The CM and Deputy CM are seen as the two pillars of a State Government and they administer the majority of the actions in consonance with the Governor. The display of opposition towards the Bill, which goes against all allegations that it is ‘religion-centric’ and ‘is a divisive policy’, can spark doubt in the minds of people about the Government’s stability and unity. If the intention and motive behind the Bill are not truly found out, the allegations will keep flowing, and such allegations can prima facie destroy the unity of the Assam Government and its Legislature.
Loopholes and Ambiguities in the Bill
There are some significant yet overlooked loopholes in the provisions of the Bill, which will be looked into henceforth.
Section 7 provides as follows:
‘Notwithstanding anything contained in the Code of Criminal Procedure 1973 or the Bharatiya Nagarik Suraksha Sanhita 2023, an offence punishable under this Act shall be cognizable and non-bailable’.[4]
Prima facie, the Section is a non-obstante clause over the CrPC and the BNSS. Such an overriding effect over the procedural laws seems unjust. The offences under the Bill must be taken into account with the CrPC as to whether the offences can be cognizable or non-cognizable, bailable or non-bailable. It is to be noted that this is a Special Law i.e., the provisions do not cover all the people in the country. It applies to those who practise non-scientific healing practices with a sinister intention of harming public health. Such an offence is not specified in the Indian Penal Code 1860, Bharatiya Nyaya Sanhita 2023, or any other relevant substantive criminal laws. Such Special Laws can override other enactments if the intention of the Legislature is the same. If the law provides for separate distinct offences under it, it can override other existing laws. The Court in Vikrambhai Amrabhai Malivad vs. State of Gujarat[5] interpreted the validity of a non-obstante clause in a Special Law overriding other statutes. ‘The primary feature would be the deliberation on the object and dominant purpose of the laws for which they are enacted.’ A statute is a Special Law if it provides for distinct offences punishable under the same law, and such offences are not punishable or mentioned in other laws. Such Special Law does not give reference to other laws
Section 8 of the Bill provides that a police officer has the power to enter and inspect any practices within the local limit of the jurisdiction where he has reason to believe that an offence under this Act has been or is likely to be committed.[6] The controversial phrase in this provision is ‘reasons to believe’. This is a double-edged sword as can be seen in various other statutes. On one side, the Officer authorised by law has ‘genuine’ reasons to believe that there are healing practices that affect public health, and on the other side, the Officer can claim his ‘reasons to believe’ without giving any proper justification or warrant in writing or otherwise to conduct that search or inspection. It can be done under the garb of ‘protecting public health’ and it is always unknown whether such garb is real or deceptive. This gives immense powers to the Officer, but the notion that such powers must be exercised responsibly must take precedence. The act of inspection can be of political or religious or any other nature, or it can be of serious concern for public health. But it is hoped that such an exercise of power is for the latter and not for the former, as one side can make or break the trust of people and fundamental principles of democracy.
Section 9 provides for the appointment of a Vigilance Officer, who has the duty to detect and prevent the contravention or violation of the provision of this Bill. Sub-section 3 provides that any person who obstructs the discharge of official duties of the vigilance officer shall be punished with two years imprisonment or with Rs. 25,000 fine or both. A Vigilance Officer, for the purposes of this Bill, is a public servant under Section 21 of the IPC or 2(28) of the BNS. Both Acts already provide for the offence of obstructing a public servant from performing official duties under Sections 186 of the IPC and 221 of the BNS, which provides for three months imprisonment or fine or both. But Section 8 of the Bill provides enhanced punishment for the same kind of offence. There is a significant disparity and statutory loophole in consonance with the two acts. The offence is already provided under the Criminal Penal statutes, but a separate mention is made in the Bill, for the same offence- obstructing a public servant from performing official duties. There is a clear lapse or a gap in the same, and it requires reconsideration.
Section 13 of the Bill is an indemnity clause, providing that no suit shall lie against any person who acted in good faith. A very similar provision in the same Bill is Section 15, titled ‘Protection of Persons’, providing that no suit shall be instituted against any person who acted in good faith. Both the provisions are double-edged swords. There is also ambiguity in the definition of ‘person’ for the abovementioned provisions. They do not specify who the person is: whether it is the public servants or the victims or the accused under this Bill. They can also be used according to the legislative intent or can be misused according to the political intent. The Sections provide the shield of ‘good faith’ to the ‘person’ whose act is protected under this Bill. Any public servant can do any act which may seem unjustified, or in the exercise of political power, and can claim the benefit or shield of ‘good faith’ which may be to ‘protect public health’. But it can also be used to protect genuine actions taken in good faith and prevent prosecution against such good-faith innocent actions. Considering the recent trends of misuse of power given by statutes by various authorities, there is a high scope of the provisions being misused by the relevant authorities for their ‘personal’ or ‘political’ advantage and purposes.
Conclusion
The Bill is definitely an exercise of legislative power leading to a situation of a double-edged sword. Whether such an exercise of power is in the background of political and religious events in the state or addresses a real concern being targeted by the Bill, it is to be seen in the enforcement after the Governor’s assent. But considering the increased opposition against the Bill regarding its intentions of going against Christianity and its practices, the Bill is, textually and theoretically, an instrument that can be used and misused. The powers conferred through this Bill along with the offences make it ambiguous yet limitless regarding the same. Such power is to be exercised with great responsibility, and especially in a country like India where democracy is the essence of every government, the scope of accountability is necessary, else the power exercised through this Bill will go unchecked, leading to another misuse of law and its provisions.
[1] Section 3, The Assam Healing (Prevention of Evil) Practices Bill, 2024.
[2] ABCC denounces ‘Assam Healing (Prevention of Evil) Practices Bill 2024’ that criminalises ‘magical healing’ – Nagaland Tribune [online], (2024). Nagaland Tribune. [Viewed 4 March 2024]. Available from: https://nagalandtribune.in/abcc-denounces-assam-healing-prevention-of-evil-practices-bill-2024-that-criminalizes-magical-healing/
[3] Article 25, The Constitution of India, 1950.
[4] Section 7, The Assam Healing (Prevention of Evil) Practices Bill, 2024.
[5] Vikrambhai Amrabhai Malivad vs. State of Gujarat, R/Criminal Misc. Application No.11014/2020.
[6] Section 8, The Assam Healing (Prevention of Evil) Practices Bill 2024.
Click here to access the Assam Healing (Prevention of Evil) Practices Bill, 2024