Trial by fire
The failure of the Rajasthan judiciary in convicting those accused in Roop Kanwar’s murder (sati) and its glorification sixteen years after the crime is matched by the refusal of the present Rajasthan government, under the BJP, to appeal these acquittals
On January 31, 2004, the special court on Sati Prevention cum sessions court in Jaipur (Justice Shiv Singh Chauhan) acquitted all the 11 accused in 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, Rajendra 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 judgements came as a big blow to the various movements struggling for women’s rights and human rights.
The judgements are full of loopholes and since then groups have been protesting against the government of Rajasthan to act immediately to rectify this miscarriage of justice. Specifically, the government must file an appeal in the Rajasthan high court. In spite of building pressure through the media and publicly agitating on the streets and writing letters to the chief minister, she has not responded.
On February 5, 2004, women’s groups in Rajasthan protested outside the Rajasthan state assembly. In spite of 250 women waiting outside the assembly gates for more than six hours, the chief minister refused to meet the delegation. She, of course, had the time to take all MLAs for a special screening of the film ‘Khaki’ that evening and also to speak to Amitabh Bacchan after the show!
Disgusted by the attitude of the chief minister, women’s groups sent her a large number of letters but the government showed no signs of either listening to us or meeting us. So we decided to step up our protest. On March 3, 2004, about 700 women from about 12 districts of Jaipur marched the city streets and protested outside the Secretariat. They demanded:
ØGovernment immediately file an appeal in the Rajasthan high court against these four judgements as there was only a month remaining.
Ø Action be taken against all government and police officials who turned hostile witnesses in court. Some of the officials who turned hostile were Nar Hari Sharma (ADM), Gyan Prakash Shukla (SDM Amer), Shukam Chand (ADM Neem-ka-Thana), Madho Lal (police photographer), Bhoop Singh (ASI), Nathu Singh (head constable), Noor Mohammed (RAS), Nathu Ram (ASI), Prabhu Dayal (SI, Behror) Ram Niwas (RPS, SHO Adarsh Nagar), Satish Kumar (Bhilwara SHO), Sawar Mal (constable), Chagan lal (SHO, Nagar Nigam, Jaipur), Prabhu Singh (SI, Patan Sikar). (Posts mentioned alongside the person are of 1987).
Ø That the other 18 cases undergoing trial be prosecuted seriously and a special committee of legal experts be set up to argue the cases.
It is clear why the Rajasthan chief minister does not wish to act. Deciding to appeal against the judgements in the high court would mean taking action against her party leaders. It would also affect the vote bank of a particular caste whose political identity was constructed around the pro-sati movement after Roop Kanwar’s murder in 1987. It would also mean coming out against her mother’s Vijaya Raje Scindia’s views, who openly supported the practice of sati at the time. It would also mean going against the Hindu revivalists prevailing in her party and its supporting organisations like the VHP and the Bajrang Dal. Incidentally, the vice president of the VHP, Acharya Dharmendra, who was one of the religious leaders who led the pro-sati movement and also the master of ceremonies at the one year death anniversary of Roop Kanwar, represents the strong Hindu revivalist current in the VHP in Rajasthan.
The 16-year-old court journey
On September 4, 1987, 18-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 burnt alive in the presence of the whole village, in the name of having attained sati-hood. 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 allowed thousands of people to break the law and glorify the murder in the name of sati worship, women’s groups moved the Rajasthan high court and got it to stop this. The women’s groups then forced the government to bring in the Rajasthan Sati Prevention Ordinance, 1987 by October 1, 1987 and later pressured 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.
In spite of the law against glorification of sati being framed in the state, in some districts and in cities like Jaipur, Alwar, Sikar, there was open violation of the law. In the month of October 1987, a large number of rallies were organised where participants marched the streets with naked swords, chanting slogans in praise of sati and Roop Kanwar. Twenty-two cases were filed by the Rajasthan police in these districts under the Rajasthan Sati Prevention Ordinance, 1987. By November, the police had filed charge sheets in these 22 matters. The accused challenged the charge sheets in the Rajasthan high court, which dismissed the cases by December 1987. The government of Rajasthan then challenged the high court judgement and moved the Supreme Court. The matter came up before the Supreme Court in 1991 and the apex court reversed the Rajasthan high court judgement in January 2003. These four cases were sent back for trial to Jaipur by the Supreme Court.
It was only by June 2003, 16 years after the gruesome burning to death of a young woman, that the trial began in the Jaipur special Sati court. The first judge of this special Sati court was taken ill and after his untimely demise a second judge, Justice Shiv Singh Chauhan was appointed. In January 2004, the trial moved with great speed and the matter was concluded by January 31, 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 October 1996 by a lower court in Neem-ka-thana in Sikar district. However, the then government of Rajasthan filed an appeal promptly by November 1996, which was admitted in the Rajasthan high court soon after. But even though eight years have passed, the appeal is yet to come up for hearing in the high court.
The major concern for women’s groups is that if the government of Rajasthan does not appeal in the Rajasthan high court against these acquittals, chances of justice in the future are reduced in other pending cases. Reactionary groups who wish to see the revival of sati will gain encouragement, as much as the formulation of this law had given them a setback in 1987.
This judgement also provides vested interests with an opportunity to revive public sentiments for such a practice. The Deorala group has not yet given up their agenda on the temple construction. Other sati trusts are also waiting to openly revive the practice. Several sati trusts in the past had also moved court to be exempted from the Commission of Sati Prevention Act. Hence this judgement needs to be challenged swiftly.
A critique of the judgement
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 "glorification" of sati practice defined in section 2 (B) and punishable under section 5 of the Rajasthan Ordinance of 1987. 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 organise 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 latter part of the definition while the earlier part is general and not related to any particular person or incident. Moreover, when it says, "it includes amongst other things", it means that the succeeding sentences are not exhaustive; they are only inclusive.
However, the court has unabashedly interpreted this to mean that the offence of glorification must be in relation to a particular incident. Therefore, first 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 perverse and unacceptable. It may be pointed out that in many other cases as well, when the Supreme Court or ‘the Rajasthan high court have issued directions with regard to preventing melas at Rani Sati Mandir etc., they have never required that first the incident of sati must be proved!
SC judgement misinterpreted
The Sati court has also misinterpreted judgements of the Rajasthan high court and Supreme Court given in the same matter in 1987 and 2003 respectively. When the Supreme Court 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 matters in the case, including offences under section 5 as well as 6 of the Ordinance, were open for trial by the Sati court. However, the Sati court began with the premise that the Rajasthan high court had already given judgement with regard to section 6 and based on this logic, the offences under section 6 were not worthy of trial. However, the court continued to discuss the evidence and declared that the offences were not established.
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 to her husband and having a relationship with only one man in her whole life. The judgement also refers to the mythological character of Sita and Anusuya, calling them satis, and then argues that if, therefore, anyone refers to Sita or Anusuya he cannot be held guilty of glorifying sati.
Such an argument is irrelevant and exposes the mindset of the court. It is in no way connected to the legal definition of the 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.
It further seems that the court was determined to find fault with every aspect of the case – facts, evidence, documentary or oral, and then rubbish them altogether. Though it was neither necessary nor legally tenable to investigate the facts in relation to the offence of glorification once the court had held that the offence of glorification could not be established without first proving the particular incident for which there was no evidence, it still did so.
It is settled law through various decisions of the Supreme Court and Rajasthan high court that the deposition of police witnesses cannot be discarded merely on grounds that they are policemen. However, while acquitting all accused in these cases, the court has refused to rely on statements of those policemen who have consistently supported the prosecution case. The court has even adversely commented upon the investigating officer simply on the untenable ground that he was the one who first communicated information about the incident and then also became investigation officer in the case.
At one point, strangely, the court has gone against the well-established 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 Ordinance 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 enough to convince even a layman that its purpose was to glorify not only the Roop Kanwar incident but the practice of sati as well. However, the court has refused to consider this evidence on grounds that the specific portions of the pamphlet that amounted to glorification were not specifically pointed out by the prosecution.
Further, when the court refers to the document (Ex. P.S.) that reads, "Roop Kanwar by becoming Sati had served ‘Hindutva’", it observes that though these words may amount to glorification of sati, they may be so considered only if Roop Kanwar’s sati incident was proved. By this logic of the court, if a book is published glorifying the practice of sati by narrating the story of an imaginary character, this will not amount to an offence unless the act of glorification relates to a real incident. (There are also several specific lapses in the prosecution that can be studied in a longer version of this article available at www.sabrang.com.)
Prepared by Kavita Srivastava and Prem Krishna Sharma on behalf of Women’s Rehabilitation Group, Rajasthan University Women’s Association, National Federation of Indian Women, All India Democratic Women’s Association, All India Progressive Women’s Association, Mahila Prakoshta - All India State Government Employees Association, National Muslim Women’s Welfare Society, People’s Union for Civil Liberties, Vividha - Women’s Documentation and Resource Centre, Bharat Gyan Vigyan Samiti, Academy of Socio Legal Studies, Vishakha - Women’s Group for Education and Research, Mazdoor Kisan Shakti Sangathan, Rajasthan Mazdoor Kisan Morcha, Urmul network, Mahila Jan Adhikar Samiti (Ajmer), Sasvika Ajmer, Sathin Karamchari Sangh, Janwadi Lekhak Sangh, Jan Vichar Manch, Lok Adhikar network, which are all members of the Mahila Atyachar Virodhi Jan Andolan, Rajasthan, a network of women’s groups and human rights groups in the state.
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