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The Lawyers
January 1988
Central Sati Act - An analysis
Maja Daruwala traces the history of sati legislation in India and analyses the Central Sati Prevention Act in this context
Four months after the Roop Kanwar incident at Deorala, the focus of attention shifted to the need for central legislation to stamp out the oppressive practice of Sati. Two rallies in Delhi, Rajasthan women activists, MP's in the State and at the Centre all called for stringent legislation against Sati. By 1 October, the Rajasthan Legislature had already promulgated an ordinance against Sati which is now a State Act passed by assembly and upheld by the Rajasthan High Court. By the new year, the Commission of Sati (Prevention), Act had passed through both houses with a minimum of debate or amendment.
The particular barbarism of consigning a vibrant life to the flames of a funeral pyre has always provoked the rulers of India to prevent this horror, despite the spurious sanctity that has come to be attached to the practice.
Historically, efforts to prevent Sati by formal means were extent even before the Moghul rulers came to power. Under the Delhi Sultanates (circa 1325) permission had to be sought prior to any Sati. In time this check against compulsion became a mere formality. In any case Hindu women from royal families continued to burn unchecked. Humayun tried, but withdrew a royal fiat against Sati. Akbar insisted that no woman could commit Sati without the specific permission of his Kotwals. They were instructed to delay the woman's decision for as long as possible. Pensions, gifts and rehabilitative help was offered to the potential Sati to wean her away from committing the Act. Children were strictly forbidden from the practice. The later Moghuls continued to put obstacles in the way but the practice carried on in the areas outside Agra. In their own sphere of influence the Portuguese, Dutch and French banned Sati but efforts to stamp out Sati were formalised only under Lord William Bentinck after 1829.
British Regulation
The British were by no means certain of their approach to the custom no matter how abhorrent they found it. Following Moghul example, for a while they tried to regulate it by requiring that it be carried out in the presence of their officials and strictly according to custom.
Perhaps Bentinck was spurred on to Legislation by the unacceptable rise in Satis in his province, Bengal. In the 10 years between 1815 and 1825, the figure had doubled to 639 deaths by burning. He was certainly egged on by the constant entreaties of the missionaries and encouraged to action by the sea change being wrought amongst an influential section of Hindus led by Raja Ram Mohan Roy's Brahmo Samaj.
Despite this, Bentinck approached the question with caution. He sent circulars to 58 of his administrators to discover whether the army would revolt, whether legislation was advisable and whether Hindu resistance could be contained. The consensus of opinion was that the army would pose no problem.
Finally, within 18 months of having assumed the governorship of Bengal, Lord William Bentinck passed the Sati Regulation, XVII of 1827 on 4 December. The regulation was clear, concise and unequivocal in its condemnation of Sati, declaring it illegal and punishable by the criminal courts. It made zamindars, petty land owners, local agents and officers in charge of revenue collection especially accountable for immediate communication to the officers of their nearest police station of any intended sacrifice of the nature described. In case of willful neglect the responsible officer was liable to a fine of Rs.200 or 6 months in jail for default.
Immediately on receiving intelligence that a sacrifice was to take place, the police daroga accompanied by others was to go to the spot and declare the gathering illegal, prevail upon the crowd to disperse, explain that any persistence was likely to make them all liable to a crime and if necessary prevent the Sati from taking place or go and inform the nearest magistrate of the names and addresses of all those present. If the sacrifice was over, a full and immediate inquiry had to be undertaken in the same way as for any unnatural death.
Most significantly the regulation eschewed any debate about voluntariness which has so much in the forefront of the Sati debate in 1987. Aiding and abetting a sacrifice whether voluntary or not was to deemed culpable homicide. Punishment was at the discretion of the court according to the nature and circumstances of the case. No justification was to be made that the victim desired to sacrificed. The death penalty was specially spelled out for any violence or compulsion or helping or assisting in burning of a widow while she laboured under a state of intoxication or stupefaction or because any other cause impeded her free will. In such cases the court was instructed to show no mercy.
Fundamental Opposition
Even before the regulation was out, some three hundred orthodox Hindus petitioned Lord Bentinck to stop the abolition. They pleaded that the practise of "self immolation", was not merely a sacred duty but a "privilege" of believers. Bentinck however would not relent.
The sequence of events that followed are and eerie precursor to the events after Roop Kanwars Sati in 1987. Orthodox Bengali Brahmins formed themselves into the Dharma Sabha, just as today we have the Dharam Raksha Samiti in Rajasthan. In all they collected more than Rs.30,000/- a huge sum in those days, to fight the Regulation all the way upto the highest court. By contrast Raja Ram Mohan Roy was given Rs.5000/- to assist the Government in their representations before the Privy Council in England. Both sides gathered petitions and pamphleteered extensively.
In 1832 the appeal was heard by the Privy Council. The petitioners argued that it went against the basic assurance given in George III Statute 37 whereby the Hindus were assured complete noninterference with their religion. The abolitionists argued that there was really no freedom of religion that could go beyond what was "compatible with the paramount claims of humanity and justice." Of 7 privy councillors, three finally voted against Bentinck's regulation but finally it was it was upheld.
With the last hurdle cleared, Madras and then Bombay followed suit with their own legislation banning Sati. Slowly local rulers who came under the yoke of the British also conceded legislation against Sati in conformity with the British regulations. The rulers of Jaipur banned it in 1846.
Indian Penal Code
The 1833 Charter to the East India Company empowered the government to make laws for British India with due respect for native custom and usage. T.B. Macaulay, brilliant academician and lawyer was given the brief of formulating a comprehensive criminal code of universal application through the entire subcontinent. He had no doubt in his mind that Sati was a barbarous practice which could brook no justification. But the administration of 1860 and the Law Commissioners who revised the first draft, were unnecessarily alive to the sensitivities of high caste brahmanical feeling and watered down the murder provisions in their relation to Sati by enacting exception 5 of section 300. Under this, a mitigation was provided for murder when "the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent." Despite this concession under the IPC, taking of life is absolutely prohibited to everyone in every circumstance. But Punishment varies depending on the nature and circumstances of the offense.
If on the facts, the ritualistic public burning or burying alive of a woman is shown to be involuntary, it is murder plain and simple (Section 300 IPC 1860). In the unlikely even that the woman was a willing participant, her death still amounts to culpable homicide (Section 299 or via exception 5 of Section 300) or at the very least to abetment to suicide (Section 306). Even where a Sati is deemed to be a suicide i.e. voluntary self-killing, the presence of any intoxicant or anything which in fact inhibits free will makes the abettor as culpable as if he had helped murder the victim (section 305 IPC). The punishment for this is exactly the same as for murder.
Where the Sati is incomplete, a person helping to achieve it is caught by the attempt sections of the IPC. Depending again on the circumstances, the crime may be attempt to murder (section 307); attempt to culpable homicide not amounting to murder (Section 308); or abetment to suicide punishable with one year's imprisonment and attempt to commit suicide which is an offence for the woman as well.
Under the present IPC no one who abets a Sati should escape the consequences of his acts. Abetment can take the form of instigation, conspiracy to do an act or make an illegal omission, intentional aiding, or willful misrepresentation or willful concealment (Section 107). Again depending on the facts, the aider could be abeting murder, culpable homicide. Form all the above it is clear that there are enough and more laws on the statute books to punish those guilty of making any human sacrifice including widow burning.
Fresh Sati Legislation
Despite this, the Central government has passed the Commission of Sati Prevention Act of 1987. Womens groups had been asked for suggestions. Had the Central government taken time to consider and passed judicious amendments to the present laws which are compatible and in consonance with the general jurisprudence of the country, the anomalies that have now arisen would not have come about.
While an entirely new act has the advantage of bringing under one, enactment scattered offenses so as to form a ready code, it also fuels the belief that there was no law against Sati in the first place. A special law again Sati related offenders also has the disadvantage of elevating a run of the mill criminal to the status of a conscientious offender. Specific legislation also provides a rallying point for pro-Sati lobbyists and a ready made cause in the name of religion and identity. Though the High Court at Rajasthan has already upheld the constitutionality of the State legislation which the Central law copies, both acts undoubtedly suffer from all the ills of hastily drafted and ill-considered legislation.
Burden of Proof
The least attractive feature of the new law is Section 16, which reverses the burden of proof on to the accused. Under the philosophy or criminal law adopted in India and used uniformly throughout the Penal Code, each accused is innocent until proven guilty. In every case the prosecution must prove its case positively beyond reasonable doubt. The only argument for shifting the burden of proof sometimes put forward is that the prosecution is so extremely disadvantaged in some circumstances that there would be absolutely minimal chance of catching the culprit. In statutory minimal chance of catching the culprit. In statutory cases where burden of proof is shifted, the offenses are relatively minor and the accused has a generally easy time proving his innocence.
In the public, even tamasha atmosphere of a sati, witnesses are available; independent, corroborative evidence is there for the authorities to gather and there is no justification for reversing the burden of proof for a mere abettor to sati when a brutal sadistic or psychotic murderer in any other circumstances has the full protection of the law requiring the prosecution to prove its case in each and every particular.
If the new law had been in the form of an amendment in the homicide sections of the IPC, declaring that henceforth all Satis (or any ritual killings) shall be presumed to be as murder unless otherwise established by the defense, the problem of women killers getting off lightly for merely abetting to suicide would have been solved.
The woman herself in this case would have always been the victim. But under the new act a woman who attempts Sati is herself liable to punishment for 6 months jail.
Abetting Sati
Without the principal there can be no abettor so the new act in its muddled way has to treat the woman as an offender in order to catch all those who take part in the commission of a Sati.
Justice requires that the punishment fit the crime. The Penal Code while absolutely forbidding all killing carefully differentiates between degrees of moral opprobrium society attaches to a crime. This is reflected in the punishments handed out for different types of killing.
The new Sati Act throws these fine and necessary distinctions to the winds.
Section 4 first of all obfuscates the difference between abetment to a crime and the principle offender. It lumps together all sorts into a single section entitled 'Abatement of Sati'. It punishes both the person who actually prevents or obstructs a widow from saving herself from being burnt or buried alive in the same measure as a person who participates "in any procession in connection with the commission of Sati".
Yet the degree of guilt is totally varied. In fact the man who intoxicates a woman or prevents her getting out of the fire is not an abettor at all but a murderer and should be treated as such. The bystander may be deemed an abettor and should be punished accordingly.
The does not mean that an abettor to the attempt would go free. Abetment to Sati can cover a wide variety of activities, such as standing around shouting 'sati mata ki jai' and attending a ceremonial killing. The degree of culpability should matter but under the new law the latter person is as liable to the death sentence as the person who actually holds down the widow and prevents her from escaping from the pyre.
The bystander at a Sati ceremony is now certainly more disadvantaged than the gruesome murderer or his aide is under the ordinary law. In their case at least the prosecution must prove the case beyond reasonable doubt.
Under the Indian Penal Code what is worrisome is the willingness of the authorities to treat cases of widow burning as suicide rather than murder or culpable homicide, because by its very definition a classic Sati is self immolation. The result is that abettors are let off comparatively lightly and escape the ignominy and moral opprobrium that attaches to these. Of course a great deal depends on the willingness of the police to pursue inquiries and lodge an appropriate FIR. Even in the Roop Kanwar case, one cannot help but feel that but for the hue and cry raised, the matter would not have been taken up and under the murder sections of the IPC.
Glorification
The new Sati Act forbids any glorification of sati, makes it punishable with upto 7 years imprisonment and a possible fine of Rs.30,000/- (Section 5). Glorification" in relation to the practice of Sati includes, among other things, "the observance of any ceremony or the taking out of a procession in connection with the Sati or the creation of a trust or the collection of funds for the construction of the temple with a view to perpetuating the honour of, or to preserve the memory of the person committing Sati."
Under the IPC 'glorification' before an act of Sati could be dealt with under the incitement to crime and violence sections. But 'glorification' after an act of Sati is not covered.
In a democracy legislation has always to try to maintain the fine balance between freedom of speech and its abuse. The naked opportunism seen after the Deorala incident has undoubtedly provoked this part of the legislation, as well as Section 19 which disqualifies people' representative from elections if convicted under the Act. It also tries to prevent unscrupulous candidates from using the Sati issue to make their political fortunes. The danger of preventing the lunatic fringe from airing their views lies in their ability to go underground with them and also clouds the limits of democratic debate.
The commercialisation aspect of Sati has been directly dealt with. But even today donation received by the perpetrators of a crime can be confiscated under the general rule that no man may benefit from the fruit of his crime. Donations at the Sati sthal are liable for confiscation if it is thought they will be used for an illegal purpose, like building a temple against the public policy. Such donations when they are in the hands of a committee can also be diverted away from their illegal purpose under Section 92 of the Civil Procedure Code. This allows the court to direct how trust monies may be used if the purpose for which they have been collect fails for intervening illegality. At the behest of the Advocate-general or any person interested, the money can be diverted for purposes such as widow rehabilitation.
There is still room for more specific legislation to discourage the commercial success of tamashas like Sati. An amendment to the Income Tax Act removing exemption from charitable donations made to temples which commemorate or have come up as a consequence of an ancient or recent Sati, will at least discourage large donors. Specifically excluding Sati temples from benefits given to charitable institutions will also discourage them.
The tremendous attention and debate that a single events at Deorala generated is evidence of the ability of the womens movement to bring about positive changes through sustained agitation. But even at the height of lobbying for some kind of legislation it was never anyones case that liberation for women from years of oppression could be brought only through essentially illiberal legislation, by robbing others of their legitimate rights. If the old law under the IPC were but enforced no new jumbled legislation would be necessary.
Hopefully there will never be another Sati and the entire discussion here will be academic. But recent experiences both of the lack of political will to implement existing legislation and the determination of the Rajputs to defy the law suggest that whatever Central laws may be enacted, may end up honoured more in the breach than in the letter.
Maja Daruwala is an advocate practising in the Delhi High Court.
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