Commentary
Commentry
She
was burnt alive! But they glorified the murder
By
Kavita Srivastava
Source:
April-May 2004 Issue of 'Lawyers Collective'
On 31 January 2004, Shiv Singh Chauhan J. of the Special Court Sati Prevention (Sati Court) in Jaipur acquitted all the eleven accused in case numbers 1/87, 2/87, 3/87 and 6/87, four of the 22 cases on glorification of sati, that were filed 16 years ago in 1987. Those acquitted included former minister and vice President of the Rajasthan BJP - Rajasthan Singh Rathore, former Bharatiya Yuva Morcha President and the nephew of Vice President Bhairon Singh Shekhawat- Pratap Singh Khachariawas, President of the Rajput Maha Sabha, Narendra Singh Rajawat, former IAS officer- Onkar Singh and advocate Ram Singh Manohar. The judgement came as a big blow to the various movements struggling for the emancipation of women from centuries old shackles of inhuman traditions and practices.
Women's groups in Rajasthan have studied the judgement and feel that they are full of loopholes. Since the day of the acquittal, these groups have been demanding that the Government of Rajasthan act immediately, give justice a chance and therefore appeal in the Rajasthan High Court. Inspite of building pressure through the media, public displays of agitation and writing letters to the Chief Minister, she has not responded.
On
the 5 February 2004, women's groups in Rajasthan
protested outside the Rajasthan state assembly.
Inspite of 250 women protesting outside the assembly
gates for more than six hours the Chief Minster
did not respond. Following which the women's groups
sent a large number of letters to the Chief Minister
but the Government has not shown signs of either
listening to them or meeting them.
Women's groups have decided not to give up their demands. The present mobilisation is one more step in the direction of being heard.
Sixteen
year old court journey
On the 4 September 1987, eighteen year old Roop
Kanwar of Deorala, District Sikar lost her husband
Maal Singh. Before afternoon she was forced to
climb on her husband's funeral pyre and was burnt
alive in the presence of the whole village, in
the name of having attained satihood. For Rajasthan
this was not the first incident of widow burning
in the name of sati since independence. It was
the 26th such incident. The only difference this
time was that women's groups were on the streets
agitating and trying to prevent the open violation
of law, first through the murder of the widow
and then by glorifying this act in the name of
sati. When the Government openly let thousands
of people break the law and glorify the murder
in the name of sati worship, the women's groups
moved the Rajasthan High Court and got together
to stop this act. The women's groups then forced
the Government to bring in the Rajasthan Sati
Prevention Ordinance (RSPO),1987, by the 1
October,1987 and later the Central Government
to bring in the Commission of Sati Prevention
Act, 1987. The law thus made punishable any
activity that could be termed as glorification
in the name of sati.
Inspite of the law against glorification being in place in the State, in the districts and cities of Jaipur, Alwar, Sikar, there was open violation of the law and a large number of rallies with naked swords, chanting slogans in praise of sati and RoopKanwar were seen in these places. 22 cases were filed by the Rajasthan police in these districts under the RSPO. By November the police had filed the charge sheets in these 22 matters. The accused challenged these charge sheets in the Rajasthan High Court who dismissed the charge sheets by December, 1987. The Government of Rajasthan then challenged the High Court judgement before the Supreme Court. The matter came for hearing in 1991.In January 2003, the Supreme Court reversed the Rajasthan High Court judgement in these cases and sent them back for trial to Jaipur.
It was only by June 2003 that, the trial began in the Sati Court Jaipur. The first judge of this special sati court was taken ill and after his untimely demise a second judge called Shiv Singh Chauhan was appointed. In January 2004 the trial moved with great speed and the matter was concluded by 31 January 2004, acquitting all the accused in four of the 22 cases that underwent trial.
This was not new. In the matter of the murder of Roop Kanwar, all the accused were acquitted in 1996 by a lower Court in Neem-ka-thana in Sikar district. Although the then Government of Rajasthan filed an appeal promptly, which was admitted in the Rajasthan High Court soon after, but eight years have passed the appeal is yet to come up for hearing before the High Court.
Major concern is that, if the Government of Rajasthan does not appeal in the Rajasthan High Court against these acquittals in cases of glorification of sati, then there will be no chance of justice in the future in these cases, which will be a set back for all progressive movements.
The
judgement
The judgment of the Sati Court, Jaipur pronounced
on 31 January 2004, acquitting all the accused
charged for glorifying the practice of sati in
four ,out of 22 cases, full of lacunae. The four
judgments, which are more or less identical, clearly
reflect the same outdated mentality, not only
in approach and appreciation of evidence but also
in the interpretation of law. One cannot help
sensing a certain kind of perverse motivation
while going through the text of the judgments.
Misinterpretation
of the provision defining glorification of sati
The most glaring problem with this judgement is
the way in which the court has interpreted the
provisions defining and punishing "glorification"
of sati under section 2(B) and 5 of the RPSO.It
does not require any legal acumen to see that
the offence of glorification is an independent
offence in itself. The definition is general and
wide and is not dependent on any particular incident.
The definition reads as under:
"By 'glorification' as far as the practice of sati is concerned, it includes amongst other things, to organize any function or procession with regard to Sati or to create any trust or collect funds or to perpetuate. the glory or memory of the person committing Sati or to build any temple for the purpose."
The intention of this provision is clear. The mention of a particular person is only in the later part of the definition while the former part is general and not related to any particular person or incident. Moreover when it says that " it includes amongst other things" , it means that the succeeding sentences are not exahustive. They are only inclusive. However the court has unabashedly interpreted it to mean that the offence of glorification must be in relation to a particular incident. Therefore the incident has to be proved in order to hold the accused guilty for the offence of glorification in relation to that incident. This itself makes the approach of the court as perverse and unacceptable.It may be pointed out that in many other cases also when the Supreme Court or 'the Rajasthan High Court have issued directions with regard to preventing melas at places like Rani Sati Mandir , they have never required that first the incident of Sati must be proved.
Misinterpretation
of the SC judgement
The Sati Court has also misinterpreted the judgment
of Rajasthan High Court and Supreme Court given
in the same matter in 1987 and 2003 respectively.
When the Supreme Court had remanded the case back
to the trial court, it clearly meant that the
complete decision of the Rajasthan High Court
was quashed and therefore all the matters in the
case including offences under section 5 as well
as 6 of the RPSO were open for trial by the Sati
Court. However, the Sati Court started on the
premise that the Rajasthan High court had already
given judgment with regards to Section 6 and on
this logic, an offence under section 6 was not
worthy of trial. But the Court continues to discuss
the evidence and declares that the offence was
not made out. But it is for every one to see that
the court was acting under a predetermined approach.
Defining
sati : an act outside jurisdiction
The same prejudice is evident when the court proceeds
to give irrelevant arguments, particularly while
considering the definition of sati, it says that
"Sati" means a woman being virtuous,
having strong character, completely devoted towards
her husband and having a relationship with only
one man during her whole life. The judgement has
also referred to the mythological character of
Sita and Anusuya addressing them as sati and on
this basis he has argued that if with this meaning
one refers to Sita or Anusuya he cannot be called
guilty of glorifying sati. Such an argument is
completely irrelevant and exposes the mindset
of the court and is not connected with the legal
definition of practice of sati. When in these
cases the accused were hailing Roop Kanwar as
sati and raising slogans in her honour, it was
clearly an offence of glorifying the practice
of sati in the legal sense of the term. They were
not honouring Sita or Anusuya but were glorifying
the burning of Roop Kanwar alive on her husband's
funeral pyre.
Not
taking cognisance
It further seems that the court was determined
to find fault with every aspect of the case including
the facts, evidence-documentary or oral and smash
it altogether. That is why though it was neither
necessary nor legally tenable to go into the facts
with regard to the offence of glorification, when
once the court has held that the offence of glorification
cannot be made out without first proving the particular
incident for which there was no evidence, it still
did so.
It is well settled by various decision of the Supreme Court and the Rajasthan High Court that the deposition of police witnesses cannot be discarded only on the ground that they are police men. However in these cases the court has refused to rely on the statements of those police men who have consistently supported the prosecution case. It was done only on the ground that they are police men, working under the investigation officer and being police men they are supposed to be expert witnesses. This part of the judgment is completely irrational. The court has even adversely commented upon the investigating officers simply on the untenable ground that he was also the one who communicated first information about the incident and then also became investigation officer.
The law for appreciation of evidence says that even hostile witnesses must not be discarded completely. That evidence has to be scrutinized but in this case the court has not at all cared to look in their evidence.
At one place, strangely, the court has gone against the well settled principle that "ignorance of law is no excuse". The court has clearly opined that unless it is not proved that the person was aware of the law, he is not liable to be punished. This argument may be somewhat relevant (but not completely) with regard to the offence under Section 6(3) of the RPSO but it seems that the court applied this interpretation with regard to other offences as well.
There is a published document, a pamphlet. A bare reading of this pamphlet is suffice to convince even a layman that it was meant to glorify not only Roop Kanwar's incident but the practice of sati as well. However, the court has refused to consider it saying that the prosecution has not specifically pointed out and argued about the portion which it considers amounting to be offence of glorification.
Further when the court refers to the document (Ex P S) containing words that Roop Kanwar by becoming sati had served "Hindutva", it says that these words may amount to glorification but then again the court brushes it aside by saying that it could only be considered so, if Roop Kanwar's sati incident was proved. Thus by the logic of the court if a book is published glorifying the sati practice by telling a story of an imaginary character, it will not amount to an offence unless the glorification activity relates to any real incident. Clearly the approach of the court was topsy-turvied.
Lapses
of the prosecution
It also seems that the prosecution itself was
either half-hearted or was deliberately helping
the accused persons. It is clear that the prosecution
was not interested in building a strong case which
would help the court to punish the guilty. Similarly,
the charge sheets that were filed within a month
of the various glorification incidents in 1987
was an act of mere tokenism to assuage the movements
that were demanding justice in these cases.
Some of the glaring loopholes in the investigation and in the charge sheets filed are as under:
- Though the offence of glorification is an independent offence, still when the offence was related to Roop Kanwar's matter it was incumbent upon the prosecution to produce material about it for the purpose of laying solid foundation and to give a, back-ground of the offence. Strangely nothing was done with regard to this aspect which shows utter callousness on the part of the prosecution.
- The notification issued by a district magistrate was neither produced nor any cogent evidence was produced to prove its publication.
- The First Information Report was sent to the Court after three days without any explanation and this FIR also did not contain the names of the accused ( the FIR is sent in 24 hours of the case being filed).
- The district magistrate who issued the notification was also not produced as a witness.
- Inspite of the judgment of the Rajasthan High Court, no extra effort was made by the prosecution to produce material and evidence with regard to the offence under Section 6(3) of the RPSO. The judgment of the High Court should have altered the prosecution as to what material was required and when the matter was remanded by the Supreme Court for retrial it was the opportunity for the prosecution to cover that weakness which was not done.
- The photographs which were taken at the time of the public meeting were not proved according to the legal requirements.
- The concerned witnesses were also not produced to prove the news items and photos published in the news papers.
- Though the speeches in the public meeting were tape recorded still the tapes were neither produced with the challan nor were they proved according to the legal requirement when ultimately they were made available to the court.
- The transcript of the tape recording was also not proved by the person who did it.
- The statement under Section 161 was also recorded after much delay.
- The identification parade was also not held for the purpose of identifying the accused by the witnesses.
- That the public relation officer and employee of the radio station were produced as witnesses but without any official record.
- That it is not understandable as to why the assembly of people in all these cases was not declared unlawful even when the district magistrate had accused notification under Section 6(3) of the RPSO.
- That perhaps this is one of the rare cases, where high ranking officers responsible for law and order, turned hostile. They include add. district magistrate, sub divisional magistrate, sub inspector, asstt sub inspector and other police men also. The state government had not taken any action against them. This itself is enough to erode the faith of the public in the intention and capability of the law and order machinery and the state government.
- The judgment shows, that even at the time of final arguments, the prosecution did not present its points well, neither on the factual, nor on the legal aspect of the case.
Demands
to the CM
The women's groups in Rajasthan had been trying
without any success to meet the Chief Minister
of Rajasthan to urge that she in her capacity
as CM must ensure that the state appeals against
the judgement of the Sati Court, with urgency.
But with appalling lack of concern, she had failed
to respond to them. Hence, on 3 March 2004 representatives
from women's groups from all over the country
gathered in Jaipur in protest.
In solidarity, representatives of women's groups, peoples' organisations and concerned individuals in Delhi simultaneously attempted to meet the Resident Commissioner of Rajasthan in Delhi. In challenging a practice as retrogressive as widow immolation called sati, and a judgement as biased as this, the state of Rajasthan demonstrated its concern for women, and its commitment to uphold the laws of the land that clearly do not allow either the practice of widow immolation or its glorification as sati.
Simultaneously, in a letter dated 3 March 2004 the representatives of women's groups, people's organisations and concerned individuals in Delhi demanded that the Government of Rajasthan file an appeal before the Rajasthan High Court and they also wrote that the limitation period would expire on 30 April 2004 and hence the appeal must be filed within this time frame. Action needs to be taken against all those official witnesses who turned hostile. Also that the 18 other cases that are undergoing trial need to be conducted not with just one PP but a support group of legal experts. Thus a committee needs to be constituted to lead the prosecution with strength.
It is a matter of grave concern that even in the year 2004 we cannot convict people of glorifying the heinous and barbaric act of sati.
Chronological list of events
Also read Sati: a historical perspective
