By Versha Goenka
Source: This article appeared in the April-May 2004 issue of the ' Lawyers Collective'

In the past, Hindu women from royal families used to burn themselves unchecked in the name of sati. Akbar, for the first time, successfully insisted that no woman could commit sati without the specific permission of his Kotwals. Once the Kotwals got to know about it, they were instructed to delay the woman's decision for as long as possible and to offer pensions, gifts and rehabilitative help to prevent women from committing sati. However, the practice continued 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
Lord Bentinck was influenced by the constant efforts of the missionaries and was further encouraged by an influential section of Hindus led by Raja Ram Mohan Roy's Brahmo Samaj to take concrete action against the practice of Sati.

He conducted an opinion poll through his administrators to discover whether a legislation against sati was advisable and whether Hindu resistance could be contained, to which there was a positive response. Finally, within 18 months of his appointment as the Governor of Bengal, he passed the Sati Regulation, XVII of 1827 on 4 December. The highlights of the said regulation are as follows:

• Sati was declared illegal and a criminal offence.
• Zamindars, petty land owners, local agents and officers in charge of revenue collection were made accountable to immediately intimidate police officers of any intended sacrifice.
• In case of wilful neglect, the responsible officer was liable to a fine of Rs.200 or 6 months in jail for default.
• On intimidation, the police official 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.
• 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.
• 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, the court was constrained to pronounce death penalty.

Even before the regulation was passed, the orthodox Hindus petitioned Lord Bentinck to stop the abolition claiming that sati was a "privilege" of believers. The more orthodox Hindus formed a group and collected funds to contest a petition against the regulation in the court upto the Privy Council. Raja Ram Mohan Roy assisted the government in their representations before the Privy Council in England. The orthodox Hindus pleaded that a basic assurance was given in George III Statute 37 whereby the Hindus were assured complete non-interference with their religion. The abolitionists argued against the said freedom of religion as inhuman. Finally, the Privy Council upheld the regulation.

Gradually, Madras and then Bombay passed their own legislation banning sati and the local rulers increasingly started conceded. The rulers of Jaipur banned it in 1846.

General provisions under the IPC
Initially, T B Macaulay intended to treat sati as murder, but with the revision of the first draft, an exception to section 300 was enacted, which said "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." This exception mitigated the punishment for murder.

However, there are a number of provisions under which the persons supporting the execution of sati can be held. In case the woman is forced, it shall be treated as plain murder, but where the woman has conducted sati on her own volition, those who have assisted her can be held for culpable homicide and/or abetment to suicide. Presence of any intoxicant or anything that inhibits free will of the woman would attract section 305, the punishment of which is exactly the same as for murder. Similarly, when the act is not accomplished, provisions of attempt to murder, attempt to culpable homicide not amounting to murder or abetment to suicide would be attracted.

Likewise, provisions of instigation, conspiracy to do an act or make an illegal omission, intentional aiding or wilful misrepresentation or wilful concealment can be attracted depending on the nature of the case.

Special law on sati
In 1987, four months after the Roop Kanwar incident at Deorala, the focus of attention of the women's groups shifted to the need for central legislation to stamp out the oppressive practice of Sati. Rallies were conducted particularly in Delhi, Rajasthan and Madhya Pradesh and the women activists called for stringent legislation against the glorification of murder of widows.
Consequently, by October 1, 1987, the Rajasthan Legislature was forced to promulgate an ordinance against sati which is now a State Act passed by assembly and upheld by the Rajasthan High Court. By the beginning of the year 1988, the Commission of Sati (Prevention) Act, 1987 (hereinafter referred to as 'the Act') had passed through both houses with a minimum of debate or amendment.

The Act clearly states that burning or burying alive of widows is revolting to the feelings of human nature and is not enjoined in the religion. The Act recognises the following as offences:

• Attempt to sati: Whoever attempts to commit sati or does any act towards such commission shall be punished with imprisonment upto six months, or fine or both.
• Abetment of sati: Whoever abets the commission or attempt to the commission of sati, shall be punished with death or imprisonment for life.
• Glorification of sati: Whoever does any act for the glorification of sati shall be punishable with imprisonment for not less than one year, which may extend upto seven years.
• Special powers: Amongst other powers, under the Act, the collector or the district magistrate is responsible for prohibiting the commission and glorification of sati. They have the power to remove any temple or structure which glorifies sati and to seize the funds that have been collected for glorification of sati.
• Special Courts: All the offences under the Act shall be tried by the special court that will have the powers of the Sessions Court. For every special court, the State Government has to appoint a public prosecutor. The court may take cognizance of any offence, without the accused being committed to it for trial. These courts can also try other offences related to the main offence of Sati. The Act provides for a day-to-day trial. The Act also provides for appeal.
• Burden of proof: Section 16 of the Act reverses the burden of proof on to the accused. Under the Act, it is the accused who has to prove that he has not committed the offence.
• Bar from inheriting property: The Act bars that person convicted for commission of sati from inheriting the property of the person in respect of whom sati was committed.

Conclusion
The special law was enacted with the hope to prevent the commission, abetment and glorification of sati. What the law-makers ignored at that time was that the judges presiding over the special courts or the district magistrates and the collectors with special powers cannot help being influenced by the strong sensitivities of the staunchly religious peoples around them or the political pressure which our leaders are capable of exercising on these officers. As a result of this, we still hear about incidents of sati, though admittedly they are very few in number and those who are brought to the Court, like in Roop Kunwar's case are acquitted.

Versha Goenka is programme officer with the Women's Rights Initiative Unit, Mumbai.

Also read: She was burnt alive! But they glorified the murder

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