JUDGMENT 1. - XXX XXX XXX That which is capable of sustaining the society and of engendering upliftment of humanity after establishing ethological and justice system is verifly 'Dharma XXX XXX XXX 2. 'Dharma' provides them security who adopt it and devastates them who impair it. 3. In the consolidated judgment of the writ petitions and petitions of habeas corpus, we made a first most reference to the above definition of Dharma', because the main controversy that upsuged along with momentous disputes on certain other Constitutional and legal points in these petitions, almost all the week through, centres round and is in the form of polmics on the interpretation of diverse definitions of 'Dharma' and 'Adliarama'. Prom the above definition it is manifest that whatever means, efforts or thought ways flourished in a particular age for an all oriented advance of humanity after establishing justice system in the society, were termed Dharma' in the nation. The philosoply capable of upholding the society was termed Dharma' In absence of 'Dharma' cautions have been given by the God fathers from time to time in age after age as to the destruction of the society, 4. In this specific controversy, the significant points that sprang forth, primarily arc whether in the Constitutional Republic of India, or in any part or Article of the Constitution which we Indians gave to ourselves, any religious, original fundamental right exists to commit the so called 'Sati' in the form of widow-burning? 5. It would be relevant as also necessary to mention that the petitioners are not at one on this issue. While other petitioners except Shri Yadunath Singh, having christened the widow - burning as 'Sati' called it the very momentous religious absolute right, which according to them, is uninterferable by the Legislature, for it is their religious right which according to their argument, has keen protected in Article 25 of the Constitution. Contrarily in the petition of Shri Yadunath Singh and in the supporting arguments advanced, his counsel Shri Surana has tried to condemn it not only as barbarity, malaftde anti-humanity, atrocity on the female society, contrary to the Constitutional spirit, but in defiance of 'Dharma' and society. Smt. Aruna Asaf Ali also has opposed the 'Sati' custom. Obviously, there is paradox in the arguments made by the petitioners on this issue. 6. The non-petitioners, amongst whom. Smt. Aruna Asaf Ali also has opposed the 'Sati' custom. Obviously, there is paradox in the arguments made by the petitioners on this issue. 6. The non-petitioners, amongst whom. the State of Rajasthan, the Chief Minister of Rajasthan, as well as the Speaker of the Rajasthan Legislative Assembly, figure primarily as opposite pantie., have refuted it and argued that the process of widow-burning or of burning or getting burnt with the cadaver of the husband is irreligious, barbaric, a blot on humanity and repugnant to the Hindu scriptures. 7. In these writ petitions, a challenge has been made to the Constitutionality of the Rajasthan Sati (Prevention) Ordinance, 1987. The prayer is for striking down the same for its bring contrary to the Constitution and for declaration to that effect. Along with these petitions are two more petitions of habeas corpus by Shri Onkar Singh and by others who are detenus in the jail under the Ordinance, with the prayer that taking them detenue is anti-constitutional. With that Shri Rajendra Singh Rathore, Bhagirath Singh, Ramsingh Manohar have lodged five petitions under Section 482 of the Code of Criminal Procedure with prayer of forthwith release. 8. Arguments on all these petitions were heard conjointly in one, at the joint prayer of the petitioners and their learned counsel. Whereas the Constitutional issues to be determined are intimately inter-connected or rather inseparable hence the same are being disposed of by one conslidated judgment. 9. At village Deorala in District Sikar of Rajasthan and situate 60 Kms. away from Jaipur the capital of Rajasthan, there came to pass a very fateful event or misevent, which aroused a great controversy which transgressed the limits not only of Sikar district, but also of Rajasthan to spread to whole of India and which rocked the Constitution, social consciousness, religious faiths, Constitutional methodology, the executive, the judiciary and the legislature. 10. Where on one had a formidable controversy was ramrent in the Courts of judiciary, Legislative Assembly and Lok Sabha in the legislative field and in other Constitutional circles, and its echo hummed, in the journalist's world of India. through the Women Organisations and in different active field of the society, on the other hand, multicoloured dimensions of this event or mishap emerged in the form of defence of dharma and religious faith. through the Women Organisations and in different active field of the society, on the other hand, multicoloured dimensions of this event or mishap emerged in the form of defence of dharma and religious faith. That is why, we have to make our judgment on the pure constitutional touch-stone in judiciary field, in all these backgrounds, being wide awake to our limitation bindings, keeping confined to the Constitutional aspects, away from different political wranglings, leaving away the clashes of persons having reason above the morass of party factions. HINDI MATTER 374881C (Shrimad Bhagwat-narrative of Ajamil) The whole Veda is the foundation of Dharma and the Smiriti (memories) ought to follow the Shruti (Veda). 11. Therefore, the authoritative canons of Hinduism are confined to the Vedmantras. The Mahabharat, the Ramayan, the Puranas, Shruti, Smriti, annotations, Garud Puran etc. are the valuable and esteemed scriptures pertaining to various happenings, history, discourses on the philosophy of Hinduism, annotations and commentaries, 12. For a religious sanction to the 'Sati' custom, we will deliberate supporting the vedas to be only authoritative and authorised form of Hinduism. if the Vedas do not enjoin the Sati act i e, the burning of the widow alongwith the cadaver of her husband an latter's death, the Sati custom or widow-burning cannot be accepted as in consonance with scriptures or Dharma. HINDI MATTER 13. Shri Sudarshana Dhar has referred the above Richa of Rigveda in his book 'Evolution of Hindu Family Law' from and on the basis of a book authored by Raghunandan. Regarding the question, what is to be imperatively done by a widow on her husband's death, a long standing controversy has been going on about this Shloka (verse couplet) of the Rigveda. Taking the above citation by Raghunandan (1) as correct, Colebrook has translated it in his book (2) as thus: "Let not the widowed women be kept to lead their lives in widowhood but become imperishable and immaterial after dedicating themselves to fire as good wives." Raghunandan and Colebrook taking the above shlok as correct by virtue of the above translation, gave out the Sati custom as scripture sponsored. 14. Raghunandan referred a quotation of 'Vishnu Smriti' in support of it to the effect that it is the duty of the widow that she ought to dedicate herself to the fire after proceeding with the corpse of her husband on his death, on the pyre. 14. Raghunandan referred a quotation of 'Vishnu Smriti' in support of it to the effect that it is the duty of the widow that she ought to dedicate herself to the fire after proceeding with the corpse of her husband on his death, on the pyre. Only exception to it are pregnant women, minor widows who have not attained puberty or the widows belonging to Brahmin caste. 15. Great commentators raising momentous dispute with regard to the above interpretation given to the above shlok described it as a clever, ill-natured finesse. Commentator Wilson wrote the word 'Om' does not occur in the verse. there is 'agre' instead of 'agne' word. 16. Taking the word as 'agre' the correct meaning of the Richa (3) is as follows: "Let these non-widow pretty husband women adorn their eyes 1 y ghrit and collyrium and take respite with placid mind. Restraining the origin of tears in the eyes, keeping away the griefs, getting decorated with daily ornaments. let these women transgress the threshold of their homes and get inside in our presence." 17. Prof. Wilson is of the view, that no word of Sati or no custom as of Sati existed anywhere in vedic times, and a dillusion was spread on scriptural authority by finesse deliberately and cunnig'tly replacing 'agre' by 'agne' in the above shlok in an ill-fencied manner. 18. The enlightened commentator Max Muller (I) held the same view. He is exasperated how the priests have done injustice and atrocities with the lives of lacs of women by inventing vulgarised and fenciful words with a terrible dexterity. Another Commentator Kalei (2) who wrote a gloss on the Rigveda. said that word 'agne' was inducted instead of 'agre' by an act of forgery or finesse and effort was made to signify the custom of burning and making burning the widows on their widowhood as vedic text scripture approved by means of a slender forgery and craftiness. These commentators held the opinion that a vile attempt was made to give shastric sanction or form to the Sati custom. 19. It will be appropriate to mention that we have attempted to extract the above controversy as it lay This is also all known that Gautarn, Bhodaya. Aptsamba. These commentators held the opinion that a vile attempt was made to give shastric sanction or form to the Sati custom. 19. It will be appropriate to mention that we have attempted to extract the above controversy as it lay This is also all known that Gautarn, Bhodaya. Aptsamba. Vashistha have nowhere made mention of Sati custom or any reference of dedication to fire by widow along with the dead body of her husband, nor of such context or custom. The commentators have attempted to prove by the above that upto Vishnu age and till date after Vashistha there had been n-) propogation, prevalence or mention of Sati custom which later took the form of dedication to fire by the widow along with her husband's cadaver. 20. Before making a more incisive probe into this controversy it will not be improper to state that once surely such a time transpired in the life of the Nation where several examples of Sati are extractable in course of times in the history. The commentators and the writtrs have described and discussed it in various forms. It is also obvious from the pages of history that in course of time the then rulers attempted to ban it It will be apposite to state in thin reference, so far as the description of different Sati occurrences before the present times such occurring came into being from time to time and few far between, but the then society or the rulers mostly took it improper and tried to ban it It will be specifically noted in this context that there is no account available about commission of Sati by Kaushalya or other queen on the death of Dashrath. The same may b.: said about Dropdi or Seeta. 21. The word 'Sati' is based on 'Satya' (truth) and this word 'Sati' has always been referred to in its pious sense. By 'Sati' has been meant from long times a woman given to truth, Chartered and fully faithful to her husband and pursuing the duties with regard to husband. But one word is interpreted in several meanings according to contexts, and, therefore, where ordinarily 'Sati' has meant 'Satya', dutifulness towards husband. Character, which character is effedlgent, and spotless, at the same time on other context it has been being taken to mean to burn entering the fire along with husband on his death. But one word is interpreted in several meanings according to contexts, and, therefore, where ordinarily 'Sati' has meant 'Satya', dutifulness towards husband. Character, which character is effedlgent, and spotless, at the same time on other context it has been being taken to mean to burn entering the fire along with husband on his death. That is why wherever the word 'Satz' is used there is this country, leaving aside the act of widow burning everybody bows with respect and faith towards her. Ordinarily 'Sati' is faith based, but it is unfortunate to have used the word 'Sari' instead of widow burning in the Ordinance. 22. Widow burning and 'Sati' in the context of these writ petitions. as well as in the context of Sati Ordinance. lave ben so interrogated that in this judgment as well as in course of arguments wherever mention of the word sati' came that ordinarily not being a description of 'Satya' or the best character of the woman. it has been a description of widow' burnme or entering into fire by the widow on her husband's death. In this context we will advert to the definition of 'Sati' as used in the Ordinance, which will he discussed when we start or judgment about the constitutionality of the Ordinance. 23. As a matter of fact 'Sat' or 'Satya' has been the foundation stone of the word Sati'. According to Hindu scriptures the word 'Sati' first of all w.ts used in reference of Parwati, and Parwati was addressed as Sati'. When her father did not invite Shiva, Parwati became hot with anger at this disrespect and discourtesy according to the scriptures and she finished her life after throwing her in the fire in a state of ire. But it would be necessary to make it clear that this act of commission of Sati by Parwati was not on the death of her husband nor was it in form of widow burning, but as a result of claims of exasperation, at disrespect and humiliation to her husband. So also there is an example of committing Sati by Kali in the Puranas. Such like example is also of Sulochana. wife of Meghnath. which is cited from the Ramavan, Abhimanyu, Ghitotkach and other several brave persons were killed in the Kurukkhetr war, but there is no account available about their wives committing Sati. So also there is an example of committing Sati by Kali in the Puranas. Such like example is also of Sulochana. wife of Meghnath. which is cited from the Ramavan, Abhimanyu, Ghitotkach and other several brave persons were killed in the Kurukkhetr war, but there is no account available about their wives committing Sati. On the contrary only a description of putting into fire their blood stained clothes and arms is available. Rawan and Dashrath were the most important personages in the context of the Ramadan, but no example of any Sati is available on their death Similarly Tara did not commit self-burning on the death of Bali. 24. This is also written in the pages of history that once upon a time commission of Sati or widow burning was taken to be a mark of respect in some specific war communities which included Kshtriya, monarchs, and the historians have given the reason for it that when the males lost their lives on the battle field during the war then this method was considered desirable that they should finish up their lives on the death of their husbands in the battle-field rather than losing their chastity, getting subjugated or dishonoured. 25. The act of 'Johar' in the fort of Chittor was committed by the wives including Padmani and other women on the killing of the Rajput warriors in the war in order not to allow their lives to be blemished or to surrender as captive to the conquers and to suffer tortures. This giving up of life by means of 'Johar is an important chapter, but it is only by way of an endeavour to save self respect and chastity at times on specific occasions. The religious great persons never accepted it in the form of Sati. Manu and Yagyavalkya only enjoined that the widow should lead her life with Satya. According to Kautilya after the death of husband or his not returning for a long time, she has been allowed to marry with her husband's brother or relative. 26. Vigorous efforts were made to check this seldom Sati custom in or about the 16th Century. In the mediaeval times the muslim ruler also called it a barbaric custom. According to Kautilya after the death of husband or his not returning for a long time, she has been allowed to marry with her husband's brother or relative. 26. Vigorous efforts were made to check this seldom Sati custom in or about the 16th Century. In the mediaeval times the muslim ruler also called it a barbaric custom. Akbar made intense efforts to check it, and once he had to travel hundreds of miles to save from commission of Sati the daughter of ruler of Jodhpur Akbar also attempted to save another Rajput widow. daughter of Udai Singh, ruler of Jaipur who wanted to commit Sati near Kewari. Akbar issued orders to his kotwal to check a widow from burning or make burn with her husband. He made efforts to encourage widow marriage. lahangir was always ready like his father in preventing Sati custom. 27. A look was also made to the history of Rajasthan. Sawai Jaisingh 11 was the first ruler who took very momentous steps and made laws to check Sati Custom. He also made provisions for punishment of Sati and for abettors and inciters of Sati This will be noted as a mockery in the pages of history that on the death of the ruler who took initiative to stop the Sati system of his three Maharanies and many other women who lived a+ concubines were made to commit Sati or were thrown into fire alongwith the cadaver of Sawai Jaisingh II in 1744. 28. Historians tell that on the death of Raja Gopaldas in 1745 AD provision for death sentence was made on commission of Sati by his wife and order was passed to confiscate the property. Maharaja Sawai Lshwari Singh did not pay more attention to it, but the Mughal emperor displayed his displeasure at the Maharaja not endeavouring to prevent Kati custom, whereupon the Maharaja gave the assurance that no Sati commission will be allowed in future in his State. 29. In the 18th Century Sawai Pratap Singh strived to prevent Sati custom doing significant deed (1778 to 1805) and prohibited it Thus, it is clear that in every age every ruler who ruled at the time as a Raja, emperor or ruler, endeavoured to prevent this evil custom by significant means, yet such incidents took place few and far between. 30. Lord Willium Bentick. 30. Lord Willium Bentick. when a spate of thousands Satis was on, asked the then political agent Major Loodla to gather full information about it and collect opinion of all after full rummage, enquiry and study. Seth Manakchand who was the most important senior Munshi and Finance Minister and Major Loodlo gave the opinion that Sati custom should be abolished, and therefrom Pandit Sukhram Bhatt who was the royal priest gave the opinion that there is no place of Sati in the religious scriptures nor is it vouched by the Shastric tenets. After the advice of Pandit Sukhram, the Rajput rulers and others also accepted the opinion and 7 Thakur Bhupat Singh Rajawat controveited this custom and other Jagirdars (Manor holding grantees) fell to this view and eradicated the Sati Custom and denigrated it as barbaric and atrociousIn 1844 Regency Council enacted a law and declared Sati commission as offence. The agent of the Governor General inspired all other Hindu rulers to put an end to the Sati custom and a proclamation was issued on 2tth April. 1846 which spelled out that whosoever will aid, incite or abet or participate in Sati ceremony will be guilty of offence and this information was sent to all. Thus the Sati is in form of heinous crime at every level, wherein Jaipur State was one. The wisdom of Loodlo is very significant in preventing this custom and declaring it as offence in Jaipur State. 31. From 1844 to 1852 only one incident of Sati occurred at the border of Marwar State. Regency Council tried to take measures in it. This is also noted while paying the tribute to Jaipur State that whenever Loodlo was in importance, efforts were made to prevent and eradicate Sati custom. 32. On the other hand, an important personage, Raja Rammohan Roy by name, came into light in Bengal, who commenced a ferocious struggle against sati custom and he contrived upto Privy Council by means of logical arguments, scripture and commentaries of the historians. At that time when Raja Rammohan Roy took the struggle, widows in Bengal used to be incited, forced, terrorised and threatened to burn on account of various reasons, one of which was the right of the widow to get the daibhag share of property on her husband's death and greed for that.Somewhere she was burnt forcibly. Thus a very unhappy situation prevailed. Thus a very unhappy situation prevailed. In the midst of these, Raja Ram Mohan Roy and other reformers took it upon themselves and when the ban matter came before the Governor General, one hundred and twenty eight Pandits opposed it. Discussions were held with the Governor General and Raja Ram Mohan Roy propounded that neither is it religious nor logical nor in consonance with hums city, but vestige of barbaric age. It is atrocity on the women; it must be stopped. The Governor General accepted it and after accepting it, he made a regulation which was brought into force at that time in Bengal under the title Sati (Prevention), Regulation. It would be relevant to state here that the preamble that was written at the commencement of this regulation is so significant that more momentus, effective and eloquent language was used in it. We would like to quote the preamble here. 33. As per the preamble of the Bengal Sari Regulation, 1829 in which not only burning or making burn under sati custom was prohibited, but provision for punishment also was made. The sati custom or the custom of burning of making to burn the living Hindu widows with the cadaver of their husbands is agitating the human conscience. Nowhere exists the mandate in Hinduism to reckon this custom as an indispensable duty. Contrary to this, leading pure and retired life has been advised to be beneficent. This is also mentioned in the preamble, that this custom has no recognition among most of the Indians, nor is it prevalent. There is no existence of this custom in many areas and the parts wherein such incidents often take place, it is notoriously taken to be atrocity on women, heart rending, unconstitutional and hienous. 34. Further in the preamble it is added that the endeavours made to prevent this evil custom could not succeed. Therefore, the Governor General in Council is very much worried and is thoroughly determined that very effective laws should be enacted, so that sati custom may be exterminated, 35. 34. Further in the preamble it is added that the endeavours made to prevent this evil custom could not succeed. Therefore, the Governor General in Council is very much worried and is thoroughly determined that very effective laws should be enacted, so that sati custom may be exterminated, 35. 800 Hindus filed a petition against the aforesaid Regulation and in that, opinion of 120 aclesistic scholars was made express that sati custom is religion consistent, hence the regulation should not be enforced, Some important parts of the grounds in the petition moved to Governor General on which Sati Regulation was challenged are as follows : "We learn with surprise and belief, that while this is confessed on all hands the abolition of the practice of suttee is estempted to be defended on the ground that there is no positive law or precept enjoining it is a doctrine derived from the religion of their fore-fathers who have a number of Hindoos who have defiled themselves by eating and drinking forbidden things in the society of Europeans, and are endeavouring to deceive your Lordships in Council by assertions that there is no law regarding Suttee practice, and that all Hindoos of intelligence and education are ready to assent to the abolition contemplated on the ground that the practice of suttee is not authorised by the laws fundamentally established and acknowledged by all Hindoos as sacred. But we humbly submit that in a question so delicate as the interpretation of our sacred books, and the authority of our religious usages, none but pundits and brahmins, and teachers of holy lives, and known learning and authority, ought to be consulted; and we are satisfied and flatter ourselves with the hope, that your Lordships in Council will not regard the assertion of men who have neither any faith nor care for the memory of their ancestors of their relgion." 36. One more petition bearing signatures of 346 persons and opinion of 120 savants by way of authority was filed. One more petition bearing signatures of 346 persons and opinion of 120 savants by way of authority was filed. After hearing both the parties on this petition W. C. Bentick, the Governor General gave his decision in the following words : (1) "The Governor General has read with attention the petition which has been presented to him and his some satisfaction in observing that the opinions of the Pundits, consulted by the petitioners, confirm the supposition that widows are not, by the religious writings of the Hindoos, commanded to destroy themselves but that upon the death of their husbands, the choice of the life of strict and serve morality is every where expressly offered; that in the books usually considered of the highest authority, it is commanded above every other course, and is stated to be adapted to a better state of society such as, by the Hindoos, is believed to have subsisted in former times. Thus none of the Hindoos are placed in the distressing situation of having to disobey either the ordinance of the Government, or those of their religion. By a virtuous life, a Hindoo widow not only complies at once with the laws of the Government, and with the purest precepts of her own religion, but affords an example to the existing generation of that good conduct which is supposed to have distinguished the earlier and better times of the Hindoo people." 37. The sum and substance of the above decision was that Hindu scripture express the view that a widow should not end her life on the death of her husband but should live with moral conduct. 38. Dissatisfied with the above decision, some Hindus made up their mind to file an appeal which was heard by Privy Council. In that appeal prayer was made that Bengal Sati Regulation b: declared void. 39. The supporters of the law enacted against Sati custom, unambiguously stated, that there is no mention of this custom in any Hindu scripture, nor any reverence for it. They also observed that because the widow gets the daibhag share of property on the death of husband, therefore, the covetous people dominated by self interests jettison the wife in the flames of fire so that the property may be obtained by other persons. The Privy Council declared the said Regulation, just, valid, logical and conforming to law as per its decision on 11.7.132. The Privy Council declared the said Regulation, just, valid, logical and conforming to law as per its decision on 11.7.132. 40. This is a serious matter when we are taking our mind to enter into, rather haunting its threshold 21st century we have given rebirth to a controversy after 155 years when the Britishers endeavoured to abolish this evil custom in India. It is obvious that we will have to pay more heed, before deciding this issue, to whether after the above discussion Hindu Dharma gives such a right or enjoins such doing or gives the direction that it is imperative on the part of the wife to dedicate herself to fire on the death of her husband. This controversy if there be any slight such glims as so when we adopted the Constitution at time of independence after serene thought, deliberation and after sacrifices and sufferings of lacs of persons, to give the females equal rights to make up for their bodily infirmity and shortcomings, we enacted protective provisions then if under article 25 of the Constitution, if a particular sect of religion recognises as proper. a custom at any place in any form, whether we under the Constitutional obligations should count it as non-separable part of religion and whether it can be stated in face of this blind faith tradition that woman combussion, widow burning on husband's death is a fundamental or legal right, which cannot be barred or restrained. 41. Articles 25 and 26 of the Constitution are very clear in this respect and are extract. the below : "23. Freedom of conscience and free profession, practice and propagation of religion -(I) Subject to public order, morality and health and to the other provisions of this part, all person. are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion (2) Nothing in this article shall effect the operation of any existing law or prevent the State from making any law (3) regulating or restricting any economic, financial political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections on Hindus. Explanation I.-The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.Explanation II.-In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly." "26. Freedom to manage religious affairs -Subject to public, order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes: (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property and (d) to administer such property in accordance with law." 42. The Indian Constitution occupies a specific position amongst the republican nations of the world. One characteristic of our Constitution is that it honoured the woman by giving her a place of dignity with equality rights who had not been treated with equality but oppressed upto the time. It is well known that the saving went in India that God dwels in the home where a woman is respected. 43. There came a time when the women were looked down upon as second grade citizens In the votary period efforts were made to deprive the women of their right to worship in the temple. In the votary period, the plight of the women war made deplorable. This condition was not limited to India only, but in many countries of the world the women had to fight for their rights. In the country wherein it was declared that we are foremost in the world in freedom and democracy and where a largest statute of liberty stands, there the women had to wage a constant struggle for several years for electoral franchise.Along with other nations of the world the women had to struggle in many forms to get their rights and dignity in India as well and that is why we made provisions to give them special protection in Article 15 of the Constitution. For the protection of life and personal liberty Article 21 for the equality Articles 14 and I; various other provisions were made Now onwards we will study and discuss Articles 25 and 26 in detail. 44. For the protection of life and personal liberty Article 21 for the equality Articles 14 and I; various other provisions were made Now onwards we will study and discuss Articles 25 and 26 in detail. 44. In Article 25 liberty of religion has been extended to all persons and it has been expressed that all persons will be entitled to freedom of conscience and the right freely to profess. participate and propagate religion. but it has been restricted by three special exceptions i e. public order, morality and health and subject to o her provisions of fundamental rights right to religious freedom has been guaranteed It in obvious that right of religious freedom has in .t been made absolute. In other clear words it would not be propounded on the ashes on burning the right of woman on the pyre of their right to protection and equality 45. As we have stated above amongst the religious rights first of all the woman was so much respected in Vedic age that the saying past HINDI MATTER 374881D The mother was reckoned in form of God Should one take the right to religious practice guaranteed in Article 15 to mean that they have no right to livelihood in future on widowhood ana it is imperative for them to dedicate themselves to lire in face of our so much glorification and giving of importance and dignity to them. 46. This will be relevant to mention here that ever since we made the Constitution above religious freedom, the Supreme Court delivered several important decisions and in those judgments our great Judges have decided important points after deep thought and deliberation relating to definition of religious freedom. discussion of religious freedom, limitation thereof. and about the correctness or otherwise of its interpretation. It has been stated clearly that religious freedom does not mean that various evil customs be saddled on the society on the basis of religious freedom of that age. In this respect several judgments were given, but with a view to confine and make substantial our decision we will refer to the cafe Dargah Committee Ajmer and others v. Shyed llussain All and others, AIR 1961 SC 1402 . which was cited by Shri Satish Chandra Aerawal in relation to correct definition of religious freedom. In this judgment the important view has been expressed. which was cited by Shri Satish Chandra Aerawal in relation to correct definition of religious freedom. In this judgment the important view has been expressed. "although there may be several such practices which, if they are based on superficial practice outside religion or are not integral part of religion, they cannot be termed as religi )us in this Article " The learned Judges further expressed the opinion unless the custom is so important which is an integral. significant, necessary and indispensible part of religion, it cannot be afforded the protection under Article 25 in any manner. 47. It is common knowledge and the petitioners also will admit that the custom which can be denominated as Sati custom has not been in the form of an integral part of religion either before or after the Indian Constitution even upto now. This custom was never recognised in the form of widow burning even in a ratio of a lac to one person. The statistical datas speak forth that after the adoption of the Constitution there are no proofs even of one Sati commission a year in Rajasthan. This position was not disputed even by the petitioners. Although it is told that in all 25 or 30 attempts were made, yet on timely information or on account of prompt action by the administration most of the attempts were foiled. 48. If a survey be made of the decisions from 1950 to 1987, one case Tej Singh v. State, 1958 RLW 19 came up in the High Court in which a wife in a Brahmin family committed self burning with the cadaver of the husband by dedicating to the tire and the accused restrained the police away at the time of its attempt to prevent Sati commission and they aided the Sati commission or Sati custom in this way. Probably several such other efforts might have been made yet as stated above, if in the population of 3 crores such attempts were made in negligible count in the last 37 years, can one say that Sati custom is integral part of Hindu religion. We hold that it was never acknowledged in the form of religion as described above, in any age according to the Shastric texts. Surely it was sighted somewhere sometime on the basis of blind faith like other evil customs. 49. We hold that it was never acknowledged in the form of religion as described above, in any age according to the Shastric texts. Surely it was sighted somewhere sometime on the basis of blind faith like other evil customs. 49. Our opinion is fortified by the fact that on counsel ever cited even a single judgment of any Court right from the Munsiff Court to High Court or Supreme Court, of any part of the country from Kanyakumaii to Kashmir, Kachchh to Calcutta, wherein Sati Gusto it was acknowledged as religious. 50. This is also apparent that though the High Courts. Privy Council and the Supreme Court decided lacs of cases yet never in this age or in the times preceding the independence such an example is available, when at that time any Hindu rulers, the then other Mughal rulers or Muslim emperors or other rulers or administrators of other castes who looked after justice-administration at a time or other in any province or the Rishis, Tunis like Vashistha and Vishvamitra to Manu, Yagvalakya. Kautilya. Kotayan or other Rishis who ever might have said in any form that the greatness or the foundation stone of Hindu religion faith of religion, importance and dignity of our religion is subsummed in the widow getting in the burning flames of pyre on the death of the husband. Obviously when no such situation obtains in any important Shastric scripture and when we agree to the argument of Smt. Hingorani after the coming into force of the Constitution that if anyone ever anywhere held such conviction such a so called custom or bad custom cannot be recognised in the present age after Constitutional pledge of giving equal rights to men and women in view of Article 13 thereof It is clear that even in the age of Maryada Purshottam Ram no attempt was made to self burn, by Kaushalaya or other women at the pyre of I: ashrath on his death, or even at the time of funeral ceremony having been performed at the behest of Rishis like Vashistha. No such attempt was made by Sita or Dropadi; then if one time or other one or two examples are available. the same cannot be taken to be of substances. Obviously it was never regarded as of religious significance in Hindu religion. 51. No such attempt was made by Sita or Dropadi; then if one time or other one or two examples are available. the same cannot be taken to be of substances. Obviously it was never regarded as of religious significance in Hindu religion. 51. Unfortunately some bad customs have been prevelant in every society every time, for example the custom of child-marriage, of funeral feast, custom of terminating the life of a girl on her very birth in some societies, the custom of Dev Daas (Maid servants to God) or the custom of untouchability which has been abolished now, of alaraming by one man to another by bell ringing. 'I am coming, please get off' and such other customs prevailed in form of sayings in our society and in others But social consciousness, great efforts were made by reformers, intellectuals, social reformers, thinkers like Dyanand Saraswati, Raja Ram Mohan Roy. Mahatma Gandhi etc. who made tireless efforts and criticism for Sati eradication. In this context Mahatma Gandhi wrote in 'Harijan' to the extent that he never saw any husband so ever burning himself on the pyre of his beloved wife. Gandhiji hereinafter also wrote that burning or causing to burn of a wife after dedicating to fire with the cadaver of husband on his death is not an indication of wisdom or knowledge but ignorance of religion and conscience That was the reason, it was banned in Bengal in 1819, in Madras in 1830 and at several places in 23 States of Rajputana, subdued by ignorance or on account of other reasons Sati incidents continued to happen even thereafter in negligible form. 52. In the judgments delivered by the Supreme Court in relation to Dharma discussing the various Articles of Indian Constitution. it has been mentioned clearly that Sati custom or widow burning does not fall in the definition of religious freedom. 53. The Supreme Court has expressed its view in Sardar Syedoa Tabir Safiuddin Saheb v. State of Bombay, AIR 1962 SC 853 , in relation to right to freedom of religion enshrined in Article 25 and 26 as follows:- "Laws made by a competent legislature in the interest of Public Order and the like, restricting religious practices would come within the regulating power of the State. For example. For example. there may be religious practices of sacrifice of human beings or sacrifice of animals in a way deleterous to the well being of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is gauranteed to every individual so that he may hold any beliefs may be liable to restrictions in the interest of the community at large as may be determined by common consent that is to say, by a competent legislature. It was no such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tend r years to a god to function as a devadasi. or of ostracising a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo were stopped by legislation." 54. The Supreme Court has enunciated in the above judgment that such religious practices which are toxit to the society as animal sacrifice or man sacrifice, cannot be recognised in any war. In the same way the Status are entitled that they bring down or totally prohihic such customs through legislation. For example, right to religious freedom has been guaranteed to all but that does not me to that it can be against the. welfare of the society. This is the human reason on account of which the social reformers put restrictions on such several religious practices which involve widow burning, to burn with the cadaver of husband or his pyre or are offering unmarried minor girls of tender age in the form of God servants (Devdasi). It is clear that after the important decision of a five Judges Constitutional Bench of the Supreme Court, there exists no more necessity for us to think, muse or churnout or to exchange views, on the arguments to pass judgment. 55. This is commonly known that in the Indian Constitution, the Supreme Court has been accorded the supreme position by Article 141 and other ones. 55. This is commonly known that in the Indian Constitution, the Supreme Court has been accorded the supreme position by Article 141 and other ones. In some age as word of mouth of a ruler became the law so also every important point of decision of our Supreme Court is not respectable to us alone, but for every Indian citizen, executive, judiciary and the Legislature and it is our duty to honour the same in full reverence. Therefore, in our opinion so far as the Sati practice through customs has been argued as a fundamental right in the form of religious practice and the said Ordinance of 1987 has been challenged as violating the same, the aforesaid decision of Sardar Syed Tahir Safuddin Sahab v. State of Bombay , is sufficient enough to set at naught this challenge. 56. The Constitutional Bench of the Supreme Court again consecreted in an important way after referring it in para 12 of the judgment delivered in His Holiness Shrimadperarulla Ithiraja Ramanuja Jiyar Swami & ors. v. State of Tamil Nadu, AIR 1972 SC 1586 . In this judgment also the point has been stressed that no religious custom or mal-practice or faith of any time can supersede the principle enshrined in Article 25 vis-a-vis public order or moral conduct. Obviously in our public welfare state the feeling of public welfare is supreme, wherein the dignity of person has been established and human values have been given the preeminence in full measure. 57. Therefore, we feel no hitch in the least measure that so far as Article 25 and 26 of the Constitution are concerned, widow burning with the dead body of her husband whether voluntarily or at the abetment by others or done forcibly by them in any form is not vouched by the Constitution and it is violation thereof 58. Thus we conclude that we do not accede to the submission of the petitioners that the usage of Sati is conforming to Religion, act of righteousness or is based on religious faith or is congruous with religious rights given in the Constitution and, therefore, the Ratastnan sati (Prevention) Ordinance is illegal and not binding Consequently we reject this submission of the petitioners In Vedic age the woman was honoured more than man in India In the Shastric disciplines mother father and Guru all three enjoyed great respect. HINDI MATTER 374881E All the three were held in honour and veneration. For woman it was the saying in India that where the woman is honoured the God dwels there: HINDI MATTER 374881F 59. Whatever reverence, dignity or respect they enjoyed in India was not, as ill-luck would have it, present in several nations at that time 60. The historians say that Sheethen clan inhabited Central Asia where from the Aryans set their feet in India there according to a specific historic usage on the death of their ruler as many as 50 young ladies, 50 horses, all his retinues and properties used to be set on fire along with him. Such a macabre and heinous misdeed or a fatal scandle existed in Sh ethen civilisation. In greek civilisation there was in vogue a mal practice like the evil custom of Sati, where women used to be burnt on death of their husbands In the age of today also, in several parts of Africa, specially in Sogan, Pijan and Moori tribes such a bad custom has been current.In a country like China also at some time, it is learnt that embracing death along with the cadaver on death of husband was considered to be a mark of respect and glory by the State authorities. Clearly this evil custom of finishing the bodies by the women on husband's demise has been held as a custom in some specific races, tribes, provinces and territories 61. Unfortunately it was due to this that the respectable, venerable and superb status, a woman had, declined after Vedic times and the woman was held to be second rate and despisable as an attendant of and dependent on men. This unfortunately was mostly in vogue in Roman and Greek civilisation where the woman passed for a 'vegetable'. 62. Therefore it is obvious from our above discussion that when at a time the task of civilisation and inspiring culture and giving light was on in India first ever in the world and the woman enjoyed the respect, some evil practice and social crimes commenced here under pressure of civilizations of other nations of the world. 63. When Raja Mohan Roy's brother's wife burnt as Sati in 1811, no religious sentiment backed it, but only a conspiracy to grab the property under law. The figures show that from 1815 to 1818, as many as 1501 in Calcutta, Bengal. 63. When Raja Mohan Roy's brother's wife burnt as Sati in 1811, no religious sentiment backed it, but only a conspiracy to grab the property under law. The figures show that from 1815 to 1818, as many as 1501 in Calcutta, Bengal. 165 in Dhaka. 155 in Patna, 104 in Murshidabad 353 in Banaras and 60 women in Meerut got burnt with the dead bodies of their husbands on latters' death as a consequent of Sati practice. This was the reason why Raja Ram Mohan Roy undertook the task. 64. As is learnt from the Blue Books its of the British Government, this ill practice was in abundance in other parts of India as Bihar, Uttar Pradesh, Bangladesh and Orissa. In that very age very few and far between examples were available in the south Vijayanagar, Gujrat, Orissa came in its fold. As expounded above Rajasthan could not save itself, here existed other reasons also as stated above. 65. Specifically on meeting heroic deaths by the Rajput rulers in times of war, the Rajput won-en used to commit 'Johar' collectively, so that the enemy could not make unhuman behaviour by spoiling their chestity and lest they be forced to live as slaves. The women who committed Johar' were glorified as brave women, which in our view also could not be said to be an offence or objectionable in any way. 66. In Bungladesh, Assam, Bihar, Uttar Pradesh this mal-practice was confined to few communities and where this ill-practice is found specially in several tribes of particular stooks in Rajasthan. Madras & Orissa, examples of this evil practice are Punjab Himachal Pradesh, Andhra Pradesh traceable mostly in Rajputs and Mahathas in Rajasthan and Maharashtra. Clearly, in particular reference of a particular age, cases of Sati into being, somewhere voluntarily and elsewhere forcibly. 67. Several rulers made efforts to proscribe it and banned it in 15th Century. As made clear above the Mughal rulers not only restrained the Sati custom but endeavered to completely make it punishable. Balajirao Peshwa took effective measures to restrain it and declare it a social crime and sinister custom. The historians also tell that not only efforts to restrain it were made at time of British rule, but various authorities attempted to save the infirm women and the ladies from burning, going in person from time to time. Balajirao Peshwa took effective measures to restrain it and declare it a social crime and sinister custom. The historians also tell that not only efforts to restrain it were made at time of British rule, but various authorities attempted to save the infirm women and the ladies from burning, going in person from time to time. One widow was rescued from burning in 1789 and information was given to the British Emperor, though a macabre riot broke at that time in doing so. 68. A Collector saved an innocent girl of 12 years from the flames of fire in 180. He issued a sort of orders and efforts were made by the British Government to restrain it place to place. The Nizamat Court was in the form of judiciary. At that time also attempts were made to prevent this custom. The British Government issued Blue Books twice in 1817 and 1821 against this bad practice which were also published in 1820 and 1822. 69. Lord Bentick contrived to prohibit Sati custom. Similarly Raja Ram Mohan Roy' as a social reformer made efforts to abolish or prevent this social ill-practice. This was the reason when a voice was raised by 8U0 Bengalies against this law, the Privy Council adjudged the enactment as valid and not holding it as anti-social and consequently dismissed the petition of the Bengalies and the Pandits. The decision of the Privy Council is as follows: "Your Majesty having been pleased, by your order in counsel of the 11th of May, 1931, to refer into this Committee the humble petition of certain Hindoo inhabitants of Bengal, Bihar and Orissa, etc setting forth that (here the petition is inserted); the Lords of the committee in obedience to your Majesty's said order of reference, have taken the said petition into consideration; and hiving heard counsel for the petitioners thereupon and also on behalf of the East-India Company, their lordships do agree humbly to report as their opinion to your Majesty, that the said petition should be dismissed. His Majesty, having taken the said Report into consideration, was pleased, by and with the advice of his Pi ivy Council, to approve thereof, and to order. as it is hereby ordered that the said petition be, and the same, hereby dismissed." 70. This Privy Council decision of 1832 can be declared non-binding only by the Supreme Court or distinguished by High Courts. as it is hereby ordered that the said petition be, and the same, hereby dismissed." 70. This Privy Council decision of 1832 can be declared non-binding only by the Supreme Court or distinguished by High Courts. It is clear that from this decision of the Privy Council to other decisions given by the Supreme Court, where on one hand the different laws against widow burning were held valid, the acts aiding and a beating the widow burning were rejected. 71. Contrary to this, this custom has been termed as anti-social, a social crime and in human or a tyrany against women, not accepting it as conformable to Hindu scriptures. civilization, society and culture. We have made reference to some decisions of the Supreme Court. In addition it is further imperative to mention that in addition the cases of Dargah Committee, Ajmer v. Syed Hussain All & ors, AIR 1961 SC 1402 in the historic Nathdwara temple case Tilkayat Shri Govind Maharaj & ors v. State of Rajasthan, AIR 1963 SC 1638 in the delknition of 'Dharma' or a discussion thereon not the customs and usages of every type but only those important principles alone have been given protection under Articles 25 and 26 which support the specific religion fully or are integral part thereof. 72. In both the petitions by Dargah Sharif Ajmer and by Nathdwara temple the administration was transferred from the religious Pujaries, Mullah, Molvi, Khadim to the committee or the authorities appointed by the State Government It was pleaded as to how the administration should be conducted in the mosque or the temple and that the Sate Government is not entitled to intervene on account of its being a religious matter, wherein the State Government cannot carry administration in view of Article 25 and 26. The Supreme Court while dismissing both the petitions gave the decision that every action, administration. usage or any other doing cannot be considered to be the important components, relating to or in respect of religion. 73. The Supreme Court while dismissing both the petitions gave the decision that every action, administration. usage or any other doing cannot be considered to be the important components, relating to or in respect of religion. 73. Similarly Shri Satish Chandra Agarwal invited our attention citing the historic judgment of (6) Arvind Ashram, AIR 1983 SC I. in respect of such acts and usages not falling within the deliinition of religion and also referred Vimay Emanuel and others v. State of Kerala, 1986 (3) SCC 615 , in which an attempt was made to compel the students standingly not to make recital by tongue in particular relation to the National Anthem 'Jan Gan Man' by an executive fiat. 74. From the discussion made in respect hereof it is clear that every bad custom, convention, usage or methodology or other such kind practices, do not carry the Constitutional protection. Simultaneously it was made clear as in the Commissioner Hindu Religion v. Laxmindra, AIR 1954 SC 282 , whatever is propounded by a Hindu Pandit Clergyman or Molvi is necessary to accept it fully as complete interpretation of Dharm. But the point in importance is that this religious freedom can be allowed within the Constitution in consonance with public order and other fundamental rights under the Constitution and not in contravention thereof. 75. The Constitution affords no protection to a religious practice hostile to important public order or provisions in other part of the Constitution. Therefore, after repeated clarity by the Supreme Court neither this Ordinance or any of its portion thereof is in contravention of the Constitution so far as protection of Article I.-, and 26 is concerned; for the Hindu religion culture or civilisation from the Vedic age down to the present age give the principle of brotherhood to the whole world ("VASUDHAIV KUI UMBKI"). Not only human being but animals and birds in nature have been viewed with compensation. Not only human being but animals and birds in nature have been viewed with compensation. In that culture the ending of life or buring the woman on lire of the flaming pyre on account of her husband's death though her life-time may not have ended on other reasons and she is able to pass her life accordingly within Articles 20 & 21 of the Constitution, cannot be stated to be in consonance with religious freedom Contrarily it would be just to state that in Indology and specially in Hindu religion on which the petitioners have so much based their arguments, this has been condoned as social crime, heinous ill-practice or inhuman conduct since the 18th Century and will continue being held so 76. Unfortunately even in this age, a talk to afford Constitutional protection to an attempt to burn or make burn a woman or a lady, is contrary to our Constitutional awakening and human view point. Neither Shruti nor Vedas ever approved of it and if sometime or other as stated by some advocates in Garud Puran or in Mahabharat ever such refeicaces came or appeared, that is explicable as an ill custom or in the form of necessity and indispensability under special circumstances. Garud Puran is not the Constitution of India. One may believe in rebirth or not, this is the freedom as to faith. Garud Puran cannot be given an importance over the Constitution. 77. The Constitution of India, as we wrote above. was framed after musing, contemplation, enquiry and thought and it was prepared by all celebrated persons of India like Pandit Nehru, Dr. Ambedkar, who was then Law Minister of India and by elected and selected representatives from every province. So far as Articles 25 and 26 are concerned, no amendment has been made in this particular context, hence our view point also is that one will have to take note of today's culture. society and social needs in defining, discussing or giving thought to religion in modern time. 78. The Constitution is not only a sizeable volume, but is a creative donamic instrument which makes efforts to fulfil the needs of the society from time to time. society and social needs in defining, discussing or giving thought to religion in modern time. 78. The Constitution is not only a sizeable volume, but is a creative donamic instrument which makes efforts to fulfil the needs of the society from time to time. The framers of the Constitution did not restrict themselves to Articles 14, 15 and 16 alone, but to enhance the rights, dignity, honour and status of the women or ladies in this context, have included directive principles with the fundamental duties in Article 51A while ascertaining the duties. Fundamental duties have been incorporated in Article 51A by an amendment. We would like to observe that after Article 51A(a) to (d) specific directions have been given in Article 51A (e), "to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounces derogatory to the dignity of women". It is necessary to mention here that in the Constitution this duty has been enjoined clearly on all executive judiciary, legislative and the citizens of India and they all have been directed to abolish all these customs, which based on religion separate away man from man and go against the honour of the women or ladies. Hence, we are of the view that time has come when stern effective steps should be taken by the legislative ant the executive to abolish this practice and to give respect and honour to the women in accordance with Article 51A (e) of the Constitution. 79. No more insult or injustice to a young woman can be than exciting her to embrace or attain death in the flames of fire in youthful, juvenile, prime youth or other age, voluntarily or under force by creating an environment of traditionalism and blind faith or by other reasonings Out of Articles -0 and 21 in which man has been given protection, Article 21 is important. In Article 21 it has been laid down "No person shall be deprived of his life or personal liberty except according to procedure established by law." Not in one but in several judgments it has been observed that the right to life and of living alive has not been bestowed to man by the Constitution, but it is available to him since birth. The Constitution has only recognised it. 80. The Constitution has only recognised it. 80. It would suffice to refer to the decision in Olga Tellis and Ors. v. Bombay Municipal Corporation and others AIR 1986 SC 180 , of the Hon'ble Supreme Court In this judgment there has been made a lucid discussion on Article 21 and the principle that one can be deprived of life and personal liberty only through procedure established by law and not otherwise, has been re-established. 81. Our Constitution contains fundamental rights on on ehand and directive principles on the other. We do not wish to fall in the controversy which of them is of more important. Whereas the fundamental rights occur in Chapter 111, directive principles in Chapter IV, the fundaments duties are incorporated in Chapter IV-A in which it has been laid what the duties of every citizen are and direction that every citizen ought to abolish a current practical which goes against the dignity of a woman. 82. Whether we can agree to deprive a woman who has been in trouble, distress and suffering in this respect, do deprive her of this right when the fundamental right to life has established in full. The answer is clear that so long as the Constitution is alive and we are determined to protect the fundamental rights of Indian citizens as awakened sentinels and so long as we are to abide by the Constitution. no woman can deprive herself of life on the death of her husband. 83. We want to consider one more aspect of the Constitution here. In this country there has been going on a great controversy in between the directive principles, basic principles and fundamental principles and rights. Therefore, in thr face of Article 51 A (e), this Ordinance which contains the widow burning as an offence can in no way be treated as unconstitutional, 84. Shri Sharma. the learned counsel for the petitioners hat advanced the argument that the word 'Sati' used in the Rajasthan Sati (Prevention) Act is not only improper, but is discrespetful because according to him calling widow burning a 'Sati' is to make a mockery of religious feelings of the Hindus. Shri Sharma also argued that Sati custom has never been in vogue in India or amongst Hindus, nor such usage ever existed. Shri Sharma also argued that Sati custom has never been in vogue in India or amongst Hindus, nor such usage ever existed. but if the feeling of a widow to finish her life at the death of her husband flares up, that women burns herself with her husband-this has been called 'co-departure or following'. Shri Onkatsingh while supporting Shri Sharma submitted that use of word 'Sati' in connection with ' widow burning" is not proper 85. In this relation our opinion is that language may be any, whether Hindi or English, one word may admit of several meanings. Where one word is capable of several interpretations, that is known `punrhetoric' according to grammer or philology. For example we would like to extract one portion of the poet Bhushan's Poem: HINDI MATTER 374881G 86. in the above poem. teen ber has been used in double sense. At one place meaning that meals were taken three times and at another place it has the connotation that only three jujubes (Ber) (one Kind of fruit) are eaten Thus one word can be used in multiple sense and it is understood in the sense of a particular context in which it is used. The ward 'sati' also is usable in various imports. 87. The word 'Sati' has been being taken with respect, reverence and sympathy since long time. Sati Sita meant that Sita was entirely chartered dedicated to examplery Ram, the best among man, her husband. co-lived with him in the form of a virtuous lady as modest and free from all characteric-slurs. Wherever use was made of word Sati' in relation to the character of the woman in her life that meant reverent and respectful disposition towards her husband. Here. today in this petition also, wherever a mention of a woman of character comes woad 'Sati' is used. As an illustration a lady Balaji by name at village Bilara in Rajasthan remained in fame as 'Sati' throughout life and her life gave inspiration to people for three or four decades. She has been looked up with honour and respect not only there but in the neighbouring vicinity too. She renounced ever thing for her life Her name is revered as Kati even today in Rajasthan Similarly many more ladies have been being glorifie.l as Satis Hence if 'Sati' is submitted in the above sense, it is not objetionable nor offence. 88. She renounced ever thing for her life Her name is revered as Kati even today in Rajasthan Similarly many more ladies have been being glorifie.l as Satis Hence if 'Sati' is submitted in the above sense, it is not objetionable nor offence. 88. The widow burning also has been termed 'Sati'. In this respect we would like to refer to a chapter of history of Theology authored by Shri Pandurang Vaman Kane. The time at which this book was written. Deorala Sati incident had not come into being, nor was this Ordinance in existence. This book was published in 1910 which is recognised as an authoritative one, nor alone in India but the world From the discussions made in Chapter 15 of the book it becomes clear that the word 'Sati' has been used in form of 'widow burning.' 89. Therefore as stated by the counsel in their argument and in some petitions that of yore Sati was taken to connote chaiactered and respectable lady for whom religious inspiration meant everything and was held in esteemed by the society. but in course of time as widow burning came into practice, widow burning began to be called 'sati' The word 'Sati' has been discussed at page 207 of volume 11 of the Encyclopae is of Religion and Ethics. In the aforesaid book also the word sati has been used in this context. Simultaneously Shri Kane has referred the widow burning at the death of her husband as moral conduct 'Co- parting' or 'Anvareharan'. Here three words have been made use of in form of Sanskrit definition. We would like to refer the materi d available in this respect along with the following titles: "1. Sati widow Burning in India By B N. Dutta "2. Evoluation of Hindu Family Law, by Sudarshan Dhar "3. Marriage & Family India by K.M. Kapadia 90. In these books word 'Sati' has been used as we observed above. There is the definite probaility of this word being taken in another import by its varient use rather than for seldom veneration for Sati, by its use for widow burning. But the Legislature has clarified while making use of this word 'Sati' that it is meant for this Ordinance only. We do not wish to be a party to the controversy that use of 'widow burning' would have been better instead. 91. But the Legislature has clarified while making use of this word 'Sati' that it is meant for this Ordinance only. We do not wish to be a party to the controversy that use of 'widow burning' would have been better instead. 91. Shri Sharma has put forth one significant argument amongst others that he has no belief in custom called Sati, because according to him Sati custom is never in vogue nor ever was. According to Shri Sharma the dedication of a lady to the fire at her husband's demise on individual reflective decision, is a matter of personal conscience and feeling. No custom is related to any community. provine or religion. As per Shri Sharma, if a lady burns herself of her own, such thoughts have been respected in religious book and scriptures. According to Shri Sharma if this Ordinance continues, there will be a macebre onslought on Hinduism, Hindu society and Hindu culture and a stroke on the religious feeling as per Section 295A of Indian Penal Code and an attempt to defile them. The Court should not allow this. Section 295A of the Indian Penal Code reads as under : "295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs:-Whoever, with deliberate and malicious intention of outraging the religions feelings of any class of citizens of India, by words, either spoken or written or by signs or by visible representation or otherwise insults of attempts to insult the religion or the religious beliefs of that class. shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 92. We heard the above argumentative objections and gave our contemplation. We are unable to give any decision as to whether any lady embraces death with the corpse of her husband in a particular time or not, Whether widow burning takes place voluntarily or by forced attempts of the familial persons or through sentimental excitation of the woman to a particular mental state or otherwise, can only be decided by a Court after study and in light of facts, examination of witnesses and thoughtful considerations, For example if a woman voluntarily burn herself in specific circumstances, personal to herself, whether the use of word 'Sati' is a blow on Hinduism. This question, we would like to decide definitely. This question, we would like to decide definitely. 93. This is a fact and there is description by some historians and in commentaries, that whenever a widow burning happens sometime somewhere, mostly allegations were levelled of pressurisation ft rcibleness or other charges, somewhere sometime the widow burning took place due to sentimental excitement or personal voluntariness. 94. It would be just to state, in all the books, we studied in this respect up til now, 'Sati' word has been used Out of there we have given some example above. In this very old edition of the above Encyclopaedia use has been made of word 'Sati' at page 361 of its volume 7, where 'Institution' has been defined, there is written that 'Sati' Custom or s:If burning by widow has been restrained by the British Government. At page 428 of Volume 4 of this Encylopaedia it has been described as a custom. Sometime it also happened that a husband burnt himself at his wife's death has been written at page 429. This has been decried as a barbaric custom. 95. On this page it is also written that the women were done to death on their husband's demise in Japan, China and Korea. Another reference of this custom has also come at page 815 of Volume 2. where a description of success of struggle against Sati custom occurs. Similarly at page 853 of Volume 6 of Encyclopaedia, Word 'Sati' has been fully discussed and it has been decried as a most prevalent manner of suicide which is called a religious suicide in the form of Sati custom. On this very page is also written that the widow embraces mortality through burning at her husband's death. Such customs prevailed mostly in the communities which had Morarchs as rulers. It was more current in the families of Rajput rulers. 96. Reference to word 'Sati' has also appeared at page 207 of Volume 11 of this Laxicon, According to this reference, whenever any wife would burn on fire at her husband's death. it was considered a good turn. The substantial reference in English of the pages of this Laxicon referred to above is as follows :"Volume VI Page 853 "9. Sati-But the most common and best known form of religious suicide was that, commonly known as Sati of widows who allowed themselves to be burnt to death on the funeral Pyres of their husbands. The substantial reference in English of the pages of this Laxicon referred to above is as follows :"Volume VI Page 853 "9. Sati-But the most common and best known form of religious suicide was that, commonly known as Sati of widows who allowed themselves to be burnt to death on the funeral Pyres of their husbands. Such suicides were frequent among all the high castes, and were especially common in the families of Rajput Chiefs. In many cases the act was entirely voluntary, but sometimes the unfortunate widow was subjected to a good deal of pressure before she could be induced to ascend the pyre Volume XI Page 207 "In the Atharvaveda, the suicide of the widow on the death of her husband is said to be 'her ancient duty'; but, although she ascended funeral pyre and lay by the side of her husband, she is said to have as her reward, pregency and property." Volume IV Page 428 bThe best-known example is that of Sati (g v.), by which the Hindu widow was burnt alive on her husband's pyre-a rite abolished in British India in 1829, but still surviving in the native State of Nepal.Volume IV Page 429 aIt is perhaps necessary to add that many of our accounts of the immolation of human victims on the occasion of a death represent some, at all events, of the victims as dying willingly or even committing suicide. It is conceivable that voluntary deaths may, in a certain number of cares, be the result of intense grief. The vast number, however, of deaths apparently voluntary are as in the case of the Hindu widow or the dependents of a Gaulish Chief, constrained by custom and the knowledge that refusal. while it dcstros the religious merit of the act, will entail compulsion, or at least that life will be speedily rendered intolerable.Volume II Page 815 "Religion was the Chief, but by no means the only, interest of Ram Mohan's active mind. He was an eager social reformer, and worked hard against polygamy, and it favour of the marriage of Hindu widows." 97. This is clear that the word Sati has been used in relation to widow burning to show up this burning. He was an eager social reformer, and worked hard against polygamy, and it favour of the marriage of Hindu widows." 97. This is clear that the word Sati has been used in relation to widow burning to show up this burning. Here there have been few ancient historians who could make an authoritative critique in Hindi or English, of all the religious disciplines Dharma Shastras after in-depth reading of them, specially of the Vedas, the foundation stone of Hinduism. 98. This is common knowledge, the writer or the historian contriving to comprehend Hindu religion will have to make study of Vedas or the origin thereof, rites and rituals, customs and usages and other systems and institutions lies in the Vedas, Smrities and Shuruties. Smrities were recorded by man on the basis of memories, hence lapses cannot be said to be unnatural. Hence several amongst them have written treatises according to their own. It would be proper to finish this discussion and clarify that it will not be correct to state that the use of the word 'Sati' occurred for the first time in Rajasthan Legislative Assembly, but it stands proved from the above investigation, that the word 'Sati' has been made use of wherever description of widow burning came up. So the objection by Shri Sharma that there will be a frolic of Hindu religion by use of word Sati, is not acceptable. We made mention of Rajasthan Legislative Assembly because in the Bill which has been passed into Act after assent of His Excellency the President of India and in the Ordinance there is no difference in the definition of 'Sati'.99. Shri Sharma has also made the argument that the definition of word Sati in Ordinance of 1987 does import the burning of the living widow with the dead husband. Hence if any widow burns herself voluntarily that is not covered within the definition of word Sati. We do not agree to the argument of Shri Sharma. As a matter of fact there is no anamoly in the del nit ion of word Sati by virtue of the meaning of burn' and 'make burn' because with the word 'cause to burn' it has been made expre's that the same may be by volition or otherwise. We do not agree to the argument of Shri Sharma. As a matter of fact there is no anamoly in the del nit ion of word Sati by virtue of the meaning of burn' and 'make burn' because with the word 'cause to burn' it has been made expre's that the same may be by volition or otherwise. Hence cur view that the use of word Sati in the Bill or the Ordinance makes no impinge on Hindu religion although this word may also be in other veneralational reference.100. Now we will consider the objection of the petitioners regarding absence of right of the State Government to make the Rajasthan Sati (Prevention) Ordinance101. Shri Sharma's argument is that this enactment is related to the religious rights and hence, entries No. 93 and 97 of the Union List apply to it. These entries are as below : "93. Offence against laws with respect to any of the mattes in this list," "97. Any other matter not enumerated in List II or list III including any tax not mentioned in either of those Lists." 102. In our Constitution, the subject matters have been divided in three lists of Schedule 7 of the Constitution, in relation to law making, which are the following :1. Union List. 2. State List,3. Concurrent List.103. In this connection Shri Sharma drew our attention to the decision in Ulitha Hyde v. State of Orissa, AIR 1973 Ors. 116 , of Orissa High Court. In this case Justice R N. Mishra and K. B. Pandey gave the decision in relation of religious act, that the law relating to religion is not covered in List 11 or III; for that only entry 97 of List I confers competence to make laws. This was the law in which attempt was made to prohibit a right of conversion to christianity and it was submitted on behalf of Christian Religion in reference of religion that to propogate Christian religion under Article 25A and to convert one to Christianity, is their Constitutional right. The Court gave the verdict in this context that because it is a matter of preventing religious conversion, hence the Centre can enact it under Entry 97, rather than a State in the form of ordinary law. Shri Sharma also told after referring this decision that the same was rejected by the Supreme Court in its decision in Re. The Court gave the verdict in this context that because it is a matter of preventing religious conversion, hence the Centre can enact it under Entry 97, rather than a State in the form of ordinary law. Shri Sharma also told after referring this decision that the same was rejected by the Supreme Court in its decision in Re. Stencils v. State of M. P., AIR 1977 SC 908 , on various grounds. It would be proper to clarify here that widow burning is not integral part of religion as a religious custom. A lucid enunciation in this respect has already been made by us earlier.104. The seldom incidents of widow burning occurred only in wars or other circumstances They were not related to religion or any usage. Events take the shape of usages when they continue in practice continuously and uninterruptedly from long time. No description of widow burning is found anywhere in the Vedas the prime origin of Dharma. Even assuming that widow burning is a religious practice it becomes unrecognisable after coming into force of Article 13 of the Constitution. This has been made clear in Article 25 that a person though enjoys freedom of religious practice yet if the same be against public order and morality or in a position to or inconsistent with other provisions enshrined in Chapter III of the Constitution such religious practice would be against the Constitution and cannot receive any protection105. We understand that the Rajasthan (Prevention) Ordinance or Act falls under the subjects in Entries I or 2 of the Concurrent List, because these subject matters relate to offences. Hance we disallow the challenge made by Shri Sharma Uptill now we have given our verdict on the following three points after full discussion : 1. Widow burning or Sati commission was never acknowledged as integral part of Hindu religion or in the form of custom it ever remained so. as an integral part thereof Even taking this ill-custom in form of religion it is void as being against Article 25 read with Article 13 on coming into force of the Constitution. 2. The submission of the petitioners that by the use of word 'Sati' or the way in which 'Sati' has been defined Hindu religion has been disgraced or dishonoured. is not reasonable or legal in any way. We hold that neither Hindu religion has been injured, nor disreputed. 3. 2. The submission of the petitioners that by the use of word 'Sati' or the way in which 'Sati' has been defined Hindu religion has been disgraced or dishonoured. is not reasonable or legal in any way. We hold that neither Hindu religion has been injured, nor disreputed. 3. As we have determined above, the State Government is entitled to enact the law under Entries I or 2 of List 3 of Schedule 7 of the Constitution. The challenge made to this law on this point is quashed. 106. Now we come to the dispute specifically raised by Shri Surana. This contention relates to the right of the Governor to prorogue Legislative Assembly and issuance of Ordinance by him. The Indian Constitution authorises the Governor that he can prorogue the Legislative Assembly from time to time. Article 213 authorises the Governor to promulgate an Ordinance when the legislative Assembly is not in session.107. In these writ petitions this controversy has upsurged very significantly.108. Both the parties have made detailed submissions with openness in regard to Constitutional practices, rights of the Governor, rights of Legislative Assembly, rights of members of Legislative Assembly and honours and prestige of the Legislature etc. The learned counsel for both the sides have aspoused their submissions by quoting judgments of the Supreme Court before making Constitutional discussion on these important points.109. A survey of incident or mishap which took place in Rajasthan in this context, is not merely relevant but necessary too. Some facts are undisputed. We would like to put them down first of all. Deceased Shri Mal Singh was married with Roop Kanwar on 17.1.1987. Shri Mal Singh was aged 23 years and Roop Kanwar 18 years. After marriage Roop Kanwar stayed with her husband. They were resident of village Deorala. The parental house of Roop Kanwar was in Jaipur City. On 23.8.1987 or thereabout Roop Kanwar went again to her father-in-law's house to her husband Mal Singh. She remained in her in-law's house at village Deorala with her husband Shri Mal Singh from 23.8.1987 to 2.9.1987.110. The events-cycle takes a tragic turn here. Roop Kanwar lived in father-in-law's house for some months with her husband. Unfortunately Mal Singh became sick and he was admitted to hospital on 3.9.198 for treatment. She remained in her in-law's house at village Deorala with her husband Shri Mal Singh from 23.8.1987 to 2.9.1987.110. The events-cycle takes a tragic turn here. Roop Kanwar lived in father-in-law's house for some months with her husband. Unfortunately Mal Singh became sick and he was admitted to hospital on 3.9.198 for treatment. Mal Singh expired on 4 9.1987 at 0.00 or quarter to 6.00 in the hospital situate at Sikar, 50 Kms a way from Deorala. The dead body of Mal Singh was brought to Deorala at or about 10 O clock. Funeral ceremony of Mal Singh was performed on 4.9.1987 at village Deorala. Along with his crimation came into occurrence the misincident of burning his wife Smt. Roop Kanwar with her bust-,and on the funeral pyre. There is no dispute about the above facts.111. The controversy starts whether the act of burning took place voluntarily or whether she was burnt by force by the members of her husband's family. After investigation the police on behalf of the State Government has filed a chargesheet against the relations of deceased Mal Singh and other persons for this incident in the Court. According to the police, they deliberately and forceably burnt Roop Kanwar against her will on the pyre of Mal Singh which has been made an offence under Section 302 I.P.C. It is a salient point for that Court to decide whether Roop Kanwar was burnt forcibly or she burnt voluntarily? Presently the case is under trial and witnesses will give their respective statements. Thereafter the Judge will decide the matter according to his, reasoning as per law. So we, keeping in mind the significant practices and limitations of law will say in these writ petitions at present that one side calls it a 'Murder' whereas the other side declares it as burning on fire with husband with volition.112. This incident definitely came into occurrence at 2.00 0 Clock after noon on 4.9 87 and the police after registering the case in the evening investigated it and several persons were challaned. The case was registered under Section 30' I.P.C. Which on the basis of evidence collected in the investigation was converted to 302 l.P C. This case is pending consideration in the court of Munsif Magistrate. Ncem-ka-Thana for committal.113. The case was registered under Section 30' I.P.C. Which on the basis of evidence collected in the investigation was converted to 302 l.P C. This case is pending consideration in the court of Munsif Magistrate. Ncem-ka-Thana for committal.113. After this mishap on 4-9-1987 circumstance became fateful in this ring of events at the time, when a writ petition to prevent the Chunri ceremony was filed in this High Court and the State Government was ordained to prevent the glorification of Sati or public function by an order in this petition on 15-9.1987. After this order, as admitted by both the parties that in this Chunri celebration in Deorala at the place where Mal Singh and Roop Kanwar burnt on one pyre, people assembled in large number. Shri Sharma submitted to extole it is decremental ritual'. Whether this occurrence be a function or a ritual act, the fact stands people mustered in huge number. i.e. exceeding one lac gathered there. Thereafter the repurcussions cam: surging up in great plane by some persons celebrating the function and opposing it as is clear from the affidavits, news paper cuttings applications, petitions or their replies filed by both the parties in support of their respective submission, and in a few days only the case or the repurcussion thereof began to to in different forms in different areas of Delhi the capital of India and in different provinces transgressing Deorala in Sikar District through the capital. Even beyond the frontiers of the State and the Nation, this Deorala Sati case became matter of a dispute and discussion at a high level.114. The environment was charged with over much talks on all sides with these questions, as a result of action and re-action drum-beating of opposition started in the Parliament. The Rajasthan Legislative Assembly was summoned on 28-9-1987 by order of the Governor. Its business commenced. On 28-9-1987 and 29-9-1987 the Consultative Committee of the Legislative Assembly prepared agenda in relation to proceedings of the Assembly in which the programme of the Assembly was fixed upto 9th and was got approved after placing it in the house.115. The Legislative Assembly commenced on 28-9-1987 and the Speaker postponed it to 5-10-87 on 29 9-1987. The speed of cycle of events took a sharp turn here from. After adjourning the Legislative Assembly again. adjourned it sine die by his order in this respect. The Legislative Assembly commenced on 28-9-1987 and the Speaker postponed it to 5-10-87 on 29 9-1987. The speed of cycle of events took a sharp turn here from. After adjourning the Legislative Assembly again. adjourned it sine die by his order in this respect. On 30-9.1987 a plurality of fateful events came into being one after another, a narration of which is necessary. According to the opposite party the Cabinet of State of Rajasthan took a decision which was presented to the Hon'ble Speaker and wherein adjournment of the Rajasthan Legislative Assembly sine die was requested for, so that a request, might be further made to H E., the Governor to prorogue the session of the Assembly.116. This decision was taken on 30-9-1987. The particulars of this decision as per the documents filed by the opposite side are as follows: "After deliberations with the permission of the Hon'ble Chief Minister, a decision was taken in view indispensability of immediate solution of certain circumstances (which are of greater public importance than the agenda of the Legislative Assembly) to make request to the Speaker; Legislative Assembly for adjourning the session of the Legislative Assembly sine die so that a further request may be made to His Excellency the Governor to prorogue the sessions of the Legislative Assembly. Sd /- Special Secretary to Govt."117. Immediately after this decision of 4.00 p.m., Hon'ble Speaker adjourned the Legislative Assembly sine die in continuation of fast proceeding events and simultaneously H. E. the Governor prorogued the Legislative Assembly. The following Notification was said to be published as a result of acceptance of the above demand of the State Government by the Speaker: NOTIFICATION Jaipur, dated 30th September, 1987 No. F. 11 (5) H & L.A./87It is published for general information that the Sixth Session of the 8th Rajasthan Legislative Assembly which began on 28th September, 1987 and was adjourned to 11.00 Monday the 5th October, 1987 on 29th September, 1987, is adjourned sine die today the 30th September, 1987 on a request for adjournment sine die having been made to the Hon'ble Speaker by the Hon'ble Chief Minister as per the decision of the Cabinet.By Order Sd/- (Nand Lai Chhangani) 30-9-87 Secretary. 118. 118. In continuation of the fast pacing events the order of His Excellency the Governor Shri Vasant Rao Patil was published on 30th September, 1987, which is as follows: NOTIFICATION Jaipur, dated 30th Sept , 1987 No F. 11 (7) H/L. A./87The following order of H. E. the Governor dated 30th September, 1987 is published for general information: "In exercise of powers conferred by sub-clause (a) of Clause (2) of Article 174 of the Constitution of India, I Vasant Rao Banduji Patil, Governor. Rajastnan, do hereby prorogue the sixth session of the 8th Rajasthan Legislative Assembly. Sd/- Vasantrao Bandhuji Patil (Nand Lai Chhanganji) 30-9-87 Secretary" 119. Shri Sharma submitted the facts relating to prorogation by means of Annexures 6 & 7 annexed to the file of Writ Petition No. 2628/87. It would be proper to say here that Shri Yadunath Singh expressed his displeasure and grievance again it the order adjourning the house sine dine by addressing a written letter which contained multifarious charges and objections, to Hon'ble the Speaker on st October, 1987.120. At the end of the night of chain of events on 30.9 87. His Excellency the Governor promulgated the Rajasthan Sati (Prevention) Ordinance, 1987 to provide for the more effective prevention of Sati and its glorification and for matters connected therewith or incidental thereto in the circumstances stated as under : "Whereas the Rajasthan Legislative Assembly is not in Session and the Governor of he state of Rajasthan is satisfied that circumstances exist which render it necessary for him to take immediate action; Now therefore, in exercise of the powers conferred by clause (I) of Article 213 of the Constitution of India, the Governor, with previous instructions of the President, hereby promulgates in the Thirty-eighth year of the Republic of India the following ordinance."121. The most important arguments advanced in these writ petitions are as regards prorogation of the Vidhan Sabha by the Governor which action has been challenged before us. Hens.;, before we start analysing and seriously considering in details the arguments advanced on the subject, it would be useful to recall the events taking place subsequent to such prorogation. While some of these events are not disputed a few others are. Hens.;, before we start analysing and seriously considering in details the arguments advanced on the subject, it would be useful to recall the events taking place subsequent to such prorogation. While some of these events are not disputed a few others are. In the context of this ordinance an attempt has been made by the State Government through several affidavits and also by other means that on 2 10.87 the day of Dashera, a plan for constructing a temple in village Deorala there Roop Kanwar and Mal Singh had been cremated, meant to glorify her, had been widely publicised and preparations for the same were going on Another reason assigned by the State for immediate promulgation of this ordinance on 1.10.87 is the prevention of events which were likely to happen subsequent to the steps allegedly proclaimed to take place on 2.10.87.122. The stand of the State Government is that on 6.10.87 an order under Section 6 of the Ordinance had been issued by the District Magistrate, Jaipur prohibiting carrying of arms in the procession to be taken out for glorification Sati. It is also said that for 9.10.87 a general public meeting was also convened in Ramniwas garden for protesting against the arrest of persons in connection with, events at village Deorala. It is also said that this prohibitory order was publicised on the all India Radio, and also through news papers published in Rajasthan on 7.10.87. The meeting was to be held on 8.10.87 permission of which has been given by the District Magistrate and Municipal Commissioner in writing on an application by the Action Committee who said that they were starting an agitation in protest against the police high-handedness during the procession which bad been taken out in connection with the Sati incident at Deorala.123. After the meeting the events took another turn. Shri Onkar Singh and others filed a writ-petition challenging the Rajasthan Sati (Prevention) Ordinance On 8.1 .87 a FIR was lodged at the Police Station, Moti Doongri about an offence permissible under Sec 6 (3) of the Ordinance but Onkarsingh and others were arrested only on 1. 11.97 in this connection. These persons challenged their arrest in a letter dated 2-H-87 addressed to the Chief Justice. This letter was treated as a writ petition (Habeas Corpus).124. 11.97 in this connection. These persons challenged their arrest in a letter dated 2-H-87 addressed to the Chief Justice. This letter was treated as a writ petition (Habeas Corpus).124. In this series of events it is worth recording that after its prorogation the Legislative Assembly was summoned again by the Governor from 27.10.87, The sittings of the House continued from 27.1(1.87 to 12.11.87 during which the present Act was passed by the Rajasthan Vidhan Sabha on 10. 11.87. It received the assent of the Governor of Rajasthan on 19.11.87 and the President assented to it on 25. 11 87.125. Hence, the main point of controversy to be considered by us is, whether there was any unconstitutionality in the sequence of events from 28.9 87 to 30.9.87, prorogation of the assembly on 30.9.87 and again summoning it i.e. the events taking place from 3.i 9 87 to 27 10 87, and whether the unconstitutionality was such that the Sati (Prevention) Ordinance 1987 can be declared unconstitutional. In this connection, first of all we shall have to draw our attention to be Constitution of India in the various Articles of which powers of of the Governor, the powers of the Legislature, Constitution. prorogation and dissolution of the Vidhan Sabha and Speakers powers in context to the proceedings of the Assembly have been spelled out.126. It is well known that under the Constitution of India the Legislature and the Governor together perform the legislative functions and that Vidhan Sabha is constituted in accordance with Article 170 of the Constitution. The duration of the Vidhan Sabha is prescribed in Article 172. Under Article 174 the Governor summons, prorogues and dissolves the House. The Governor has got a constitutional right to address the Legislative Assembly and to send messages to the House. Article 170(l), 174 and 175 run as under : "Constitution of the Legislative Assembly (1) Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituancies in the State", "174-Sessions of the State Legislature, prorogation and dissolution. Article 170(l), 174 and 175 run as under : "Constitution of the Legislative Assembly (1) Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituancies in the State", "174-Sessions of the State Legislature, prorogation and dissolution. (1) The Governor shall from time to time summon the House of each House of the Legislature of the State to meet at such time and place as be thinks fit, but six months shall not intervene between its last sitting in one Session and the date appointed, for its first sitting in the next Session." (2) The Governor may from time to time- (a) prorogue the House or either House; (b) dissolve the Legislative Assembly." "175-Right of Governor to address and send messages to the House or Houses, (1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members." (2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a I-louse to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration." 127. The Election of the Speaker and the Deputy Speaker of the Legislative Assembly has been provided for in Article 178, and there are other articles prescribing their functions procedure to remove them etc, Article 1; 8 runs as under : "178 -The Speaker and Deputy Speaker of the Legislative Assembly: Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof, and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be."128. Thus it is clear that whereas the Governor has been empowered to summon the House prorogue and dismiss it, the Speaker has got powers to conduct and control the proceedings in the House. Thus it is clear that whereas the Governor has been empowered to summon the House prorogue and dismiss it, the Speaker has got powers to conduct and control the proceedings in the House. Rules of procedure and conduct of business in the House wherein the rights and duties of the Speaker have been prescribed are made under Article 208 (I) of the Constitution. According to Chapter IV of these rules, the Speaker has the power to conduct proceedings in the House and to adjourn the House. Article 208(l) of the Constitution runs as under : "208-Rules of Procedure:-A House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution its procedure and the conduct of its business." 129. Here, we would like to quote Rule 13 of these rules which runs as under : "13. Adjournment of House:-The speaker shall determine the time when a sitting of the House shall be adjourned sine die or to a particular day or to an hour or part of the same day : Provided that the Speaker may, if he think. fit, call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die."130. Chapter IV (sic 'VI') provides for the arrangement of business of the House which is transacted according to the list prepared under Rule 28 of that Chapter. The business is approved by the House on the report of the Business Advisory Committee constituted for the purpose and is conducted by the Speaker. The Speaker is also authorised to allow or disallow any particular item on the business on any day to b taken up Sub-Rule (4) of Rule 28 invests the Speaker with full authority to make any alternations in the list of business provided he is satisfied that it is expedient or necessary to do so. It is evident that normally the Speaker has full and final authority to conduct the proceedings in the House. All the Ministers as also the legislators to whatever party the latter may happen to belong, freely and frankly express their opinion in the House and it is expected of the Speaker that he should conduct the proceedings in the House in a constitutional manner rising above the mire of party politics. All the Ministers as also the legislators to whatever party the latter may happen to belong, freely and frankly express their opinion in the House and it is expected of the Speaker that he should conduct the proceedings in the House in a constitutional manner rising above the mire of party politics. In England there had been a practice that anybody after his election as the Speaker ceases to have affiliation with any political party and in India also at times some Speakers adopted this practice. They broke off their connection with the political party or whose ticket they had been elected. Whether the Speaker thus breaks off all his relations with the political parties formally or not, the practice has been that the Speaker discharges his constitutional duties in conducting proceedings in the House in an impartial manner. it is expected that his rulings in the House shall not he influenced by the consideration whether any member of the House seeking his permission on any point is a member of the political party or that.131. It is also relevant to state in this connection that decision about ascertaining the majority opinion in the House, to conduct the proceedings in consonance with such opinion, to extend or not to extened the sitting of the House or to allot adequate time for discussion of a particular point, is taken by the Speaker. In particular the practice when the previously fixed time of the sitting of the House is to he extended or on some other similar occasions, apart from the rules has been that the whip of the party having a majority in the House (Known as the "yes" party) requests the Speaker that the time of the sitting of the House may be extended for taking into consideration any Bill or some other motion. In the same manner request is sometimes made for completing the discussion on any point early and the Speaker takes a decision as he thinks proper.132. In the same manner request is sometimes made for completing the discussion on any point early and the Speaker takes a decision as he thinks proper.132. We have summarised in brief the relevant portion of the Rules of Procedure and Conduct of Business in the Rajasthan Vidhan Sabha for the reason that in the arguments advanced before us an allegation has been levelled against the Speaker that he having once adjourned the House till the 5th of October, changed his decision malafide under pressure and adjourned the House sine die against the voice of his own conscience in violation of his own sense of justice and impartiality. In this connection Shri Surana read out before us the record of the proceedings of the House in which the Speaker had said, according to Mr. Surana, that he was not in a position to say anything more on the subject Shri Surana, therefore, argued that the Speaker did not appear to have taken the decision in an impartial manner because of some pressure. That was why the Speaker did not say that whatever he had done was done in his own discretion and not under any pressure.133. In our view the adjournment of the House as ordered by the Speaker cannot be judicially examined in a manner in which any matter is examined thread-bare while hearing an appeal in some civil or criminal case. This is so because the constitutional duty is discharged by the Speaker according to his own discretion and the Courts do not like to transgress the field in which the Legislature is supreme and such supremacy has been provided for in the Constitution. The position as obtainable in Article 212 of the Constitution of India has been spelled out as under: "212. Courts not to inquire into proceedings of the Legislature. (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 134. Article 194 contains the rowers, privileges etc. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 134. Article 194 contains the rowers, privileges etc. of the Houses of the Legislatures and of members and committees thereof and runs as under:- "194-Powers, privileges, etc. of the Houses of Legislatures and of the members and committees thereof. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in the Legislature of every state, (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature of any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature, of a State, and the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978. (4) The provisions of clauses (I), (2) and (3) shall apply in relation to persons who by virtute of this Constitution have the right to speak in and otherwise to take part in the proceedings of. a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature". 135. A very important controversy of the subject had arisen in (12) a reference case under Article 143 of the Constitution, AIR 1965 SC 745 . One Keshav Singh had published a hand-bill for which he was summoned by the Speaker, Legislative Assembly U. P. to be reprimanded for having corn Witted a breach of privillege. Keshav Singh was ordered to be sent to Jail for such breach of privilege. One Keshav Singh had published a hand-bill for which he was summoned by the Speaker, Legislative Assembly U. P. to be reprimanded for having corn Witted a breach of privillege. Keshav Singh was ordered to be sent to Jail for such breach of privilege. Upon this, the High Court ordered under Article 226 of the Constitution for release of Keshav Singh on bail. When this order was conveyed to the Sneaker, the Vidhan Sabha passed a resolution that the two High Court Judges who bad passed the order and also the Advocate who had moved the bail application, should be taken into custody immediatly and produced before the House.136. On receiving information about the action taken by the Legislative Assembly, the two High Court Judges and the Advocate who had moved the application on behalf of Keshav Singh filed a writ petition under Article 226 of the Constitution for quashing that order and the other judges of the High Court passed a stay order. The Speaker of the Legislative Assembly was restrained from issuing the warrant of arrest of the High Court judges and was directed not to get it served, if it had already been issued.137. The controversy assumed serious proportion and became a matter of discussion throughout the country. While on the one hand, the Legislative - Assembly was trying to send the High Court judges to Jail, for committing a breach of the privilege of the House, on the other the High Court judges were passing orders directing the Speaker to stay the compliance of the resolution of the whole House,138. Hence, in these extra-ordinary circumstances the President framed five questions and made a reference to the Supreme Court under rule143(l), so as to avoid such unfortunate situation of a clash between the Legislative Assembly and the High Court in future. The reply given by the Supreme Court to the questions framed is the authentic interpretation of law on the point of respective rights of the Speaker of the Legislative Assembly and the High Court.139 The Supreme Court said that the two judges of the High Court were within their right in hearing the bail application moved on behalf of Keshav Singh challenging the order of the Speaker of the Legislative Assembly and in passing an order granting bail to the petitioner. In reply to the second question it said that Keshav Singh and his Advocate who moved the bail application as also two judges of the High Court who heard that application did not in any way commit a breach of the privilege of the Legislative Assembly. It was also said that the Legislative Assembly had no right to summon the two High Court judges and the Advocate under arrest to show cause. It was also said that the three judges or Full Bench of the Court hearing petition against the above order and granting stay had acted within their rights. It was further said that when the High Court hears petition of any kind it does not in any way commit breach of the privilege of the Legislative Assembly.140. After this, the provisions of Article 194 of the Constitution on the subject of powers and privileges etc of the Houses of Legislature were explaiied and it was held that the Legislature has got all the rights which are in consonance with and do not contravene the fundamental tights enshrined in the Constitution.141. We need not enlarge upon this point any further because no serious challenge had been posed before us to the Constitutional position that we cannot summon the Speaker to answer these petitions. It has been argued that the Speaker had acted in his discretion and in his discretion cannot be called in question before this Court wholly or partially on the ground of propriety or impropriety. After studying the judgments of the Supreme Court on the subject, we have no hesitation in holding that neither the High Courts nor even the Supreme Court can normally interfere in the discharge of its functions by the Legislature.142. As is evident from the language of Articles 212 and 194 as also from the judgment referred to above, the question whether the the Speaker had sufficient reasons to adjourn the House sine die on 30.9.87 or not can be looked into by the court only to the extent whether it was malafide or against the constitutional provisions. Unconstitutionality and malafides are the only two grounds on which the rights of the Speaker can be challenged. We cannot go deep into detailed discussion about the sufficiency or insufficiency of the reasons for his actions.143. Unconstitutionality and malafides are the only two grounds on which the rights of the Speaker can be challenged. We cannot go deep into detailed discussion about the sufficiency or insufficiency of the reasons for his actions.143. Before we pronounce our judgment on this point, it is necessary to state that in support of his petition the petitioner has filed a letter dated 1.10.87 from Shri Yadunath Singh, some cuttings from the news papers and an affidavit. It has been alleged therein that the Speaker adjourned the House sine die under pressure from the Chief Minister. On the other side, both Shri Harideo Joshi Chief Minister and Shri Girraj Prasad Iewari Speaker have filed affidavits in this court out of which it is necessary first to mention what Shri Tewari has clearly averred.144. The allegation levelled in para 3 of the affidavit and in paras 5 and 6 of the writ petition, that the House was adjourned sine die under any pressure has been denied as untrue and false.145. Shri Tewari has reiterated in para 4 of his affidavit that neither he had adjourned the House sine die under any body's pressure nor did any body make any attempt to pressurise him for doing so. According to him, the allegation published in the papers, that at first he was not in favour of adjourning the House sine die and that he was called to Delhi where in the Prime Minister's Secretariate he agreed to adjourn the House sine die is also false,146. Shri Tewari's affidavit clearly indicates that he has denied all these allegations as false and concocted. In para 5 Shri Tewari has stated that it is false that he was not inclined to adjourn the House sine die or that he did not discharge his constitutional obligations. He also denied as false the allegation that he had adjourned the House sine die by bowing before the pressure from the State Government or from the Prime Minister's Secretariat.147. Shri Tewari has stated in para 6 of his affidavit that he was requested by the State Government on the basis of a decision by the Council of Ministers that the House should be adjourned sine die upon which he was satisfied that the State Government was facing some circumstances which were of very urgent public importance. He, therefore, decided that the Legislative Assembly should be adjourned sine die.148. He, therefore, decided that the Legislative Assembly should be adjourned sine die.148. Side by side it is proper to look into the affidavit filed by the State Chief Minister Shri Harideo Joshi in which he clearly denied as totally false and untrue the allegation levelled by Shri Yadunath Singh in Paras 5 and 6 (ground B&C) of his petition that he (Chief Minister) had exerted any pressure on the Speaker According to Shri Joshi the Counsel of Ministers had decided in the face of extraordinary circumstances present on 30.9.87 that the Speaker should be respectfully requested to adjourn the House sine die and after considering the entire situation the Speaker of the Assembly in his discretion very kindly agreed to do so.149. Shri Harideo Joshi in his affidavit has also stated on oath that he himself and other Ministers of the State Government have great respect for the Speaker of the Assembly and they cannot even think of obtaining any decision from him under pressure. The decision to adjourn the Legislative Assembly sine die was one taken by the Speaker in his own discretion in the larger public interest.150. We, therefore, have two types of allegations and their replies before us. On one side, there is an affidavit from Shri Yadunath Singh M.L.A. in which the Speaker is alleged to have adjourned the House sine die under pressure of Chief Minister. On the other, there are affidavits filed by the Speaker Shri Tewari and the Chief Minister Shri Harideo Joshi in which that allegation has been stoutly denied, Now the main question before us is, whether we should consider in greater details the circumstances of the alleged pressurisation or, keeping in view the limited jurisdiction of the court, should drop the matter c,u the principle of oath against oath.151. In our opinion, we are not competent under the provisions of the Constitution to sit in judgment over the propriety or in propriety, sufficiency or insufficiency of the grounds for the order passed by the Speaker of the Assembly. The matter was within the discretion of the Speaker and the framers of the Constitution did not envisage any interference in such discretion in the working of the Legislature, by the Judiciary.152. The matter was within the discretion of the Speaker and the framers of the Constitution did not envisage any interference in such discretion in the working of the Legislature, by the Judiciary.152. The founding fathers of the Constitution have clearly defined the functions of the Executive, Legislature and the Judiciary the three fillers of the Constitution and have made them aware of the fields or functions in which they are sovereign. For example the Legislature normally does not sit in judgment on the question of propriety or impropriety of the judgments pronounced by the judiciary, although in special circumstances it has the power to declare as valid certain acts held to be invalid by the courts. Similarly, the judicially does not interfere in a day to day working of the Speaker and the members of the House as to how proceedings arc conducted there, debates are held, motion; are moved and adopted, cut motions moved in the budget are rejected or accepted-unless and until) any action taken is against the provisions in the Constitution.153. Surely, under the Constitution the Speaker has absolute power to adjourn the House and unless such power is abused and the facts proving such abuse are clear and unconti overte, we do not want to transgress into the field of the Legislature. We, therefore, are of the clear opinion that after receipt of the affidavits from the Chief Minister and the Speaker, without heir-splitting the meanings of the words used and without going into the technicalities we arrive at the conclusion that both of them have stoutly denied that sine die adjourment of the House was under pressure.154. Simply because the Council of Ministers had requested the Speaker to adjourn the House sine die, it cannot be said that the adjournment was malafide.155. Even as the Speaker was free to take into consideration the points raised in a letter addressed to him by Shri Yadunath Singh. he could not have thrown into the waste paper basket the request made by the Council of Ministers enjoying majority in the House simply on the ground that the request had come from the Council of Ministers. It was the duty of the Speaker to take a decision, in his own discretion, on such an important matter. he could not have thrown into the waste paper basket the request made by the Council of Ministers enjoying majority in the House simply on the ground that the request had come from the Council of Ministers. It was the duty of the Speaker to take a decision, in his own discretion, on such an important matter. The affidavits filed by both Shri Joshi and Shri Tewari are clear on the point that Shri Joshi did make a request to the Speaker on the basis of the resolution of the Council of Ministers and the Speaker after giving a thought to it took his own decision.156. The allegation about the Speaker taking the decision under any pressure in the Prime Minister's Secretariat has also been stoutly denied, and it is not within our jurisdiction to appoint a commission to enquire whether or not Snri Tewari had gone to the Prime Minister's Chamber, whether or not he reached the Secretariate on any particular day and what deliberations, if any took place between him and any of the advisers of the Prime Minister or any body else. We are of the opinion that we are neither competent to go deep and enquire into the allegations and counter allegat;ons after perusal of the affidavits nor do we consider it necessary to do so.157. On the basis of cuttings from the news papers Shri Yudhnath Singh attempted to argue that the Speaker Shri Tewari did go to the Prime Minister at Delhi where pressure was exerted on him, but just now when we are dictating the order on this point. Shri Surana submitted that although in the writ petition (which had been typed much earlier) the allegation of execration of pressure by the Prime Minister's Secretariat had been made, that portion was later on omitted Shri Calla however, pointed out that in the copy of the petition given to him that portion was still there and had not been omitted. Shri Surana submitted that although in the writ petition (which had been typed much earlier) the allegation of execration of pressure by the Prime Minister's Secretariat had been made, that portion was later on omitted Shri Calla however, pointed out that in the copy of the petition given to him that portion was still there and had not been omitted. Now the position before us is that Shri Yudhnath Singh himself does not want to press the allet:ition of exertion of pressure by the Prime Minister's office and hence the matter needs no further discussion.158 We are also of the clear opinion that in certain special circumstances the court can allow in evidence the news items published in the papers to be proved and can also give due weight to them, but in such an important matter where the allegation of exertion of pressure has been made against the Speaker of the Legislative Assembly. we cannot in the absence of an affidavit from the editor or the person by whom the news item had been despatched. consider the news items as the last word. Our opinion is that looking to all the circumstances and in view of the allegations and denials in the affidavits, we are unable to accept the challenge to the powers of' the Speaker in the absence of their exercise being proved to be malafide or in contravention of the Constitution.159. Shri Surana raised an objection that in the reply filed on behalf of the State Government and the affidavit accompanying it there is no mention of the facts contained in the affidavits filed by the Speaker Shri Tewari and the Chief Minister Shri Joshi, and, therefore, those facts should neither be considered nor accepted. The Chief Minister and the Speaker have been impleaded in this petition as the opposite party and in that capacity they have filed their affidavits.160. Shri Surana also raised the objection that the facts stated in the affidavit filed by Shri Jagmohan Singh, Dy. Secretary also find no mention in the reply filed by the State Government. In reply. Shri Khan said that he allegations levelled by the petitioner have been denied by the State Government. We have considered this point and find that Shri Jagmohan Singh affidavit definitely gi vt s more facts than those contained in the reply filed by the State Government. In reply. Shri Khan said that he allegations levelled by the petitioner have been denied by the State Government. We have considered this point and find that Shri Jagmohan Singh affidavit definitely gi vt s more facts than those contained in the reply filed by the State Government. In para 2, it has been stated that since there were holidays from 29.9.87 to 5.10 87 on account of Dashera and the Legislative Assembly had been adjourned for that peiicd, it was not possible to get the Sati Prevention Bill passed. After this. it has been stated in para 3 that a wireless message intimating the formation of an action committee at Divrala was received and that the action committee wanted to install on 2.10.87 the statue of the Sati in the temple proposed to be constructed and to thus glorify the Sati A large number of people would gather in that connection and there was danger of the law and order situation becoming worse and such danger was extraordinary and the procedented.161. This fact has no special importance in our discussion so far, concerning the power of the Speaker. We should consider this point at the time of examining the question of prorogation of house by the Governor, because the Speaker had taken the decision of adjourning the house sine die on the request made by the State Government and perusing the resolution of the Council of Ministers. In this resolution it had been simply pointed out that there were some other more important matters because of which it was not expedient to continue the Session of the Legislative Assembly which should be adjourned sine die so that the Governor may be requested to prorogue it. Before we examine the Governor's powers, it is pertinent to observe that so far as the rules regarding the filing of writ petitions and the affidavits accompanying them are concerned, we have provided ample opportunity to both the parties to file affidavits or other documents in support of their respective contentions without binding down the parties or restricting them on bare technicalities. We have done so because the question to be considered by us is not merely administrative or one concerning as particular person in fact the question is of such social, constitutional and national importance that it is not fare to bind down or restrict any party by technicalities of the rules. We have done so because the question to be considered by us is not merely administrative or one concerning as particular person in fact the question is of such social, constitutional and national importance that it is not fare to bind down or restrict any party by technicalities of the rules. Actuated by this motive we have told both the parties that they are free to file any paper, affidavit or any document of a similar nature concerning the matter before we pronounce our judgment on a particular point and that we shall be glad to receive the same. To include details of any particular matter in the reply given by somebody depends upon the skill and experience of the person drafting the reply, but if there is any contradiction, it only reduces the value of the affidavit. As it is no such contradiction between the affidavit and the reply has been brought to our notice.162. Before we start discussing the Governor's powers it is proper to observe we have in no uncertain terms declared any interference in the decision of the Speaker of the Legislative Assembly to be out of the scope of Article 226 of the Constitution and hence beyond our jurisdiction, because we cannot go into the question of sufficiency or insufficiency of the reasons for adjournment of the House sine die, and the petitioners have failed to prove malatides. We would, however, like to say that the precedents cited before us from the British House of Commons should be adopted as far as possible in our country also to the extent they are not contrary to our Constitution and the rules of procedure in the House Whatever the contemporary historians of the reign of King Charles the first of England and the commentators on the Parliamentary practice have written should give us guidance in our parliamentary activities. I and II The matter relates to an incident which had occurred in the British House of Commons on 5.1.1640. After that on 4.1.1642 King Charles the first, the autocratic ruler of England, tried to interfere in the Parliamentary activities and trespassed the parliament's sphere. The law known as Grand "remonstrance" had been passed and in a published resolution an appeal had been made to the public to protest against the King's policies and thereby show public dis-content. After that on 4.1.1642 King Charles the first, the autocratic ruler of England, tried to interfere in the Parliamentary activities and trespassed the parliament's sphere. The law known as Grand "remonstrance" had been passed and in a published resolution an appeal had been made to the public to protest against the King's policies and thereby show public dis-content. All the members of the House of Commons were of course, not unanimous but the majority decided that way. At first I I votes were caste in favour of its passage and on the second attempt the motion for getting it publicised was carried The House of Commons was divided on matters of religion and many of its members were against the King and the Church. Many members were keen on introducing various changes in the, Church. King Charles on the advice of his wife took a wrong decision that he would enter the House of Commons alongwith a contigent of soldiers and his body guard and would arrest the five prominent members of the House, namely, Pym. Hamden, Holies, Hazalring and strod who were opposing the Govt. on Charges of treason. He issued the orders of their arrest because he could not tolerate any opposition to his autocracy. He wanted to arrest all these members by storming the House of Commons and sent a message to the Speaker that these five members should be produced before him under arrest.163. The Speaker of the House of Commons read the King's message, containing the order, as a notice and saw that soldiers were collecting near the West Minister Palace and the King was about to arrive with his soldiers for arresting the members of the House of Commons. Against this background, the Speaker permitted these five members to slip away from the House after which the King entered the House with his soldiers and occupied the Speaker's chair. Sir Simond E. Evis was a member of Parliament and according to the description given by him and one other eye witness there was a knock at the door of the house of Commons. The Speaker said that before the King occupied the Speaker's chair his permission ought to have been obtained.164. Rising from the Speaker's chair and looking towards the members of the House the King inquired whether Pym was present there. The Speaker said that before the King occupied the Speaker's chair his permission ought to have been obtained.164. Rising from the Speaker's chair and looking towards the members of the House the King inquired whether Pym was present there. On getting no reply, he made a similar query abut the other members but every body simply stood in silence. Thereupon, the King ordered the Speaker to produce the five members named by him, so that the (King) could arrest them. What the Speaker of the House of Commons said in reply was nit only historical but deserves to be written in letters of gold in the constitutional and more so parliamentary traditions and is fit to be emulated and treated as a source of guideace. In measured words, the Speaker of the House of Commons Mr. Lanthel replied, "Your Majesty I have no eyes and no tongue. My eyes and tongue are the honourable members of this august House. I am their servant and am here by virtue of their grace Hence your Majesty. I implore you not to force me to do this act, because I am not in a position to give the reply which your Majesty expects."165. We have narrated the above incident in its historical perspective and having done so we do not want to make further comments on the Speaker's powers or the action taken by him. What we wish is that the Speakers throughout the world should give proof of such impartiality and fearlessness in such difficult circumstances.166. Now after holding as constitutional, the action of the Speaker in adjourning the House sine die we have to examine and analyse the other points about prorogation of the House by the Governor. It is, of course, well known that on the 30th September after the decision to prorogue the legislative assembly was taken the Speaker decided to adjourn it sine die on receipt of the resolution of the Council of Ministers. The Governor can prorogue the House for which he has g 't the constitutional right. It is, of course, well known that on the 30th September after the decision to prorogue the legislative assembly was taken the Speaker decided to adjourn it sine die on receipt of the resolution of the Council of Ministers. The Governor can prorogue the House for which he has g 't the constitutional right. There are no two opinions about it because such right has been vested in him by the founding fathers of the Constitution and it is enshrined in clear words in Art 174 of the Constitution, which runs as under : "174.-Sessions of the State Legislature, prorogation and dissolution: (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session, (2) The Governor may from time to time- (a) prorogue the House or either House; (b) dissolve the Legislative Assembly." 167. Hence. normally no objection can be raised against the Governor's constitutional right to prorogue the House. The question raised by Mr. Surana and other petitioners is that such prorogation was malafide and a misuse of the constitutional powers. The background of this allegation as described by Mr. Surana was this that Sati Prevention Bill could have been introduced in the Assembly and also got passed while the Assembly was in session, because the incident of Sati had taken place at Deorala before the 28th. From the sequence of events that took place later on, it was clear that two parties-one in favour of the Sati and the other against that practice were gating agitated gradually and the agitation was being intensified by various organisations. journalists. political leaders, social workers and even the religious preachers and preceptors, on one side or the other. The atmosphere had become hot. Its renifications and reactions were visible in various parts of the country, much beyond the geographical borders of Rajasthan. The affair had become a topic of heated discussions particularly in Delhi and as stated by Mr. Surana in the writ petition and the papers filed alongwith it. The atmosphere had become hot. Its renifications and reactions were visible in various parts of the country, much beyond the geographical borders of Rajasthan. The affair had become a topic of heated discussions particularly in Delhi and as stated by Mr. Surana in the writ petition and the papers filed alongwith it. there were expectations even before 28th that some legislative measure might be adopted to declare the glorification of Sati as unlawful act an,l a crime to be prevented and punished and so that no further action towards such glorification may be possible. In this context it was recalled that as early as 15 9.97 on a petition the State Government had been ordered not to allow any function or ceremony at village Deorala for glorifying the Sati. It is also well known and undisputed that on the very next day members of the public gathered at village Deorala in very large numbers running into lacs to join the Chunri ceremony observed at the cremation ground or the Sati Sita either as spectators or as those offering their homage.168. It is evident that when the sessions of the Legislative Assembly commenced on the 28th the question regarding the Government's inability to prevent the 'Chunri' ceremony despite the High Court's orders had assumed importance because of the apprehension that such situation may arise again. Shri Surrana's stand is that in such circumstances a Bill could have been introduced in the House on the lines of the Law passed later on so that the members of the House could get an opportunity to express their viems on the subject. If that had been done, the members would have had ample opportunity to discharge their duties and exercise their constitutional rights.169. On the other hand, affidavits on behalf the State Government and other respondents have been filed in this connection explaining the circumstances leading to the prorogation of the House. Shri Jagmal Singh Deputy Secrectary Home Department in an affidavit filed in Shri Yadhunath Singh's petition has stated that since the Legislative Assembly had been adjourned on 29.9.87 on account of Dashera, it was not possible to summon it before the 6th of October and get the law passed by it. Shri Jagmal Singh Deputy Secrectary Home Department in an affidavit filed in Shri Yadhunath Singh's petition has stated that since the Legislative Assembly had been adjourned on 29.9.87 on account of Dashera, it was not possible to summon it before the 6th of October and get the law passed by it. In para 3 of his affidavit, Shri Jagmal Singh has stated that the State Government was receiving disquisting and protentous information that an 'action committee' had been formed at Deorala with the programme of constructing a temple and installing Sati's statue idol in it and thus thereby glorifying her. This installation of the Sati's idol was going to take place on 2.10.87 when there was the likelihood of Lacs of persons gathering and glorifying the Sati. This was likely to worsen the law and order situation in as much as a section of the society was arousing instigating religious sentiments which was resluting in increase of tension. Shri Jagmal Singh has also stated in his affidavit that an abnormal and dangerous situation was looming large before the State Government in respect of worsening of the law and order position. This affidavit was filed in this writ petition on 25.11.87.170. The most important question of all which has emerged before us in this connection is whether the Governor can create circumstances which were not existing as a matter of fact but under which he may act in exercise of his powers under Article 213. The Business Advisory Committee had prepared the list of business to be taken up by the House upto the 9th of October, but the Governor exercised his powers of prorogation of the House under Article 174 simply for promulgating an Ordinance under Art 213.171. After hearing arguments on behalf of both the parties and perusing various rulings of the High Courts and the Supreme Court, we have to observe first of all that the Rajasthan Legislative Assembly undoubtedly had sufficient legislative business upto 9th of October. As per Annexure-6 in the Assembly Bulletin Part-I1 sittings of the House had been finalised from 28th of September to 9th October, 1987, and according to Annexure-7 notice regarding the likely legislative and financial Government business had also been issued. It is also undispu ed that. the Business Advisory Committee had also prepared a list of business to be placed btfore the House.172. It is also undispu ed that. the Business Advisory Committee had also prepared a list of business to be placed btfore the House.172. It is also not disputed that the list of business prepared by the Business Advisory Committee had been put on the table of the House and adopted. We feel the need to describe this background because in the normal course the business of the House was to continue upto 9th although changes necessitated by new circumstances justifying exercise of the Speaker's right therefor could be made. When, therefore, the Speaker adjourned the House on 30.9.87 upto 5.10.87, it was clear that the House would commence its sittings after the 5th and the session would continue upto the 9th.173. We have no doubt that the three events which took place on the 30th of September were (1) meeting of the council of ministers (2) the resolution passed by it and (3) the request made to the Speaker to adjourn the House sine die. The Governor thereafter prorogued the House on the same day after its adjournment sine die, and the impugned Ordinance was promulgated on the 1st of October These events took place in a series between the 30th of Sept. and the 1st of October.174. The question is, whether the Governor had acted malafide or in contravention of his constitutional powers ?175. Before we arrive at any decision on this point, it would be better to look into some of the decisions of the various High Courts and the Supreme Court on the subject. First of all, it u ould be necessary to refer to a judgment of the Madras High Court in which the Governor in almost similar circumstances had prorogued the House for promulgating an Ordinance. This question figured prominantly in the case of (13) Kalyanm Vir Bhadrayya AIR 1950 Mad. 243 . In that case the Madras Maintenance of Public Order Act, 1947 had been challenged, and in that context a point had arisen, whether according to a report published in a Hindi news paper dated 4.8.49 the decision to promulgate an Ordinance has been taken, as per affidavit by C. v. Rajgopalacharya, with a view to make good the deficiencies detected in the Madras Maintenance of Public Order Act. The Legislative Assembly which was in session was prorogued for the purpose on 2nd of August. The Legislative Assembly which was in session was prorogued for the purpose on 2nd of August. The petitioners in that case raised an objection that the said prorogation was for the purpose of promulgating the Ordinance and that this could not be done being a misuse of the Governor's powers. When it was argued in the context of controversy about Sec 88 that the Governor's action in proroguing the session of the Legislative Assembly was a fraud on the parliamentary process the Hon'ble Judges of the High Court held that it was not possible to accept the logic. because his Excellency the Governor had absolute power to prorogue the Legislative Assembly which he could do at his pleasure. The court observed that such right of the Governor could not be challenged. The Judges also observed in that judgment that as they themselves knew well the democratic procedure for getting a Bill passed by the Vidhan Sabha was very slow and time consuming and because of the rules of procedure and conduct c'.f business in the Legislative Ass.-mhly, nothing could be done with expedition and promptitude. Hence, if His Excellency the Governor felt satisfied that immediate action was called for justifying promulgation of an Ordinance instead of getting a Bill passed by the Legislative Assembly, his satisfaction could not be challenged. After all, according to the judges the sole authority and judge to take a decision in such matters was the Governor himself and not the judges of the Court. The Hon'ble Judges referred to a number of decisions of the Privy Council and the High Courts in their judgments on the point that so far as the necessity to take immediate action was concerned. the Governor's discretion was final and it could not be examined by the Judicial courts.176. Had this Madras judgment been upheld in the form in which it had been pronounced, we would have probably received some guidance in deciding the writ petitions pending before us, although it is not obligatory for us to accept a judgment from any other High Court so long as it is not reasonable, logical and validly given. However. so far a; that judgment is concerned, it is clear that the Supreme Court in its judgment in the historical case Punjab Sarkar v. Satyapal Dang etc,, AIR 1969 SC 903 , disagreed with the Madras view.177. Hon'ble Chief Justice Mr. However. so far a; that judgment is concerned, it is clear that the Supreme Court in its judgment in the historical case Punjab Sarkar v. Satyapal Dang etc,, AIR 1969 SC 903 , disagreed with the Madras view.177. Hon'ble Chief Justice Mr. Hidayatullah speaking on behalf of his collegues 1J. C Shah, Ramaswamy, Mittal and Grover JJ) comprising the Constitutional Bench observed as under : "Article 174(2)(3) which enables Governor to prorogue the Legislature does not indicate any restrictions on this power. Whether a Governor will be justified to do this when the Legislature is in session and in the midst of its legislature work, is a question that does not call for consideration here. 'A hen that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the learned judges in Re. Kalyananam Veerbhadrayya, AIR 1950 Mad. 243 . But that is not the case here. The bonafides of the Speaker's ruling adjourning the Assembly for so long as two months when the Financial statement and the budget were on the agenda and time was running out are more in question than the conduct of the Governor. No malafides were attributed to the Governor except to say that he acted in excess of the powers or in colourable exercise of them. The power being untrammled by the Constitution and an emergency having arisen, the action was perfectly understandable. We shall presently sh w that the Governor acted not only properly but in the only constitutional way open to him. There was thus no abuse of powers by him nor can this motive be described as malafide as has been said by one of the leatned judges in the judgment under appeal It is a matter of regret that such a conclusion was reached without any plea or material." 178. There is no condition or restriction en the Governer's power of prorguing the session of the legislature under Article 174 of the Constitution. The question before us is not whether the Governer car vi'1 rtcrt~et1 rrcicgt e the Legislative Assembly when it was in Session transacting lc irlative business. If such is the case, the allegation of malafde transgression of his constitutional powers and acting in an unconstitutional n'anner can definately be levelled. The question before us is not whether the Governer car vi'1 rtcrt~et1 rrcicgt e the Legislative Assembly when it was in Session transacting lc irlative business. If such is the case, the allegation of malafde transgression of his constitutional powers and acting in an unconstitutional n'anner can definately be levelled. But this is not the question before us. We, thcrcfo.e, do rot approve of and go to the extent of what was held in the cafe of Kalyanm Vir Bhadrayya ( AIR 1950 Mad 243 ). It is clear that after the Supreire Court judgment the Madras High Court judgment can provide no guidance to us and it cannot be considered as an authoritative interpretation of the law on the subject. We are, therefore, unable to get any help in the disposal of the petitions before us from the Madras High Court judgment.179. Now a noteworthy feature of this matter is that three other judges of the Madras High Court itself comprising the Full Bench in K.A. Mathailagan v. Governor of Tamilnadu AIR 1973 Mad 198 , did not agree with that judgment. The sequence of events which took place in Madras case was that on 13.11.72 the Legislative Assembly was in session. and the list of business had been approved upto 5.12.72. Suddenly, on 13-11.72 the Speaker adjourned the House till 5 12.72 and the Governor prorogued the session on 4.11.72. In the opinion of the Governor the work to be done through an Ordinance was important and it was not possible to wait upto 5.12.72 and hence he prorogued the House and promulgated the Ordinance.180. In a case challenging this Ordinance the Full Bench of Madras High Court quoted the Supreme Court judgment in State of Punjab v. Satyapal Dang, AIR 1969 SC 903 , it was argued before them that the master under their consideration was similar and democracy had been murdered because the Council of Ministers by that time had lost majority. After hearing arguments the Madras High Court accepted the position that according to the said Supreme Court judgment the Governor did not have unl;miied powers and the validity of his action can be challenged on g ounds of nialalides and violation of the cons'itutional provisions. After hearing arguments the Madras High Court accepted the position that according to the said Supreme Court judgment the Governor did not have unl;miied powers and the validity of his action can be challenged on g ounds of nialalides and violation of the cons'itutional provisions. The Chief Minister in his affidavit said that the suggestion given by the Speaker to the State Government was not proper in as much as the Chief Minister was representing the majority party. It was, therefore, legitimate for him to continue as Chief Minister and get necessary action taken by the Governor through an Ordinance. In such circumstances the Ordinance promulgated by the Governor was upheld by the High Court while observing that the matter depended upon the satisfaction of the Governor and that the High Court could not go any further in the matter.181. After the judgment in Satyapal's case, if we consider other judgments of the Supreme Court, it can be reasonably said that amongs the rulings cited before us by the learned Advocate General and his other colleagues the rulings in Vishwanath Agarhal v. The State of U P., A R 1954 All. 557 , Mannalal Lachhirm & Sons v. Gram Panchayat, Susri AIR 1964 M P. 81 , Janan Prasanna Das Gupta v. Province of Bengal, 1948 (53) Cal. W.N. 70 =AIR 1949 Cal . I (all Full Bench Rulings) relate to the Governor's right to promulgate an ordinance. However, in the presence of the Supreme Court judgments we need not give further consideration to these rulings. The Supreme Court has interpreted the relevant law regarding the Governor's powers in the case of R. C Cooper v. Union of India AIR 1970 SC 564 . In this important judgment which in its own right is considered as historic amongst the Supreme Court judgments, the question related to the summoning of the House of the People and the Council of States at the time of nationalisation of the Banks The Parliament was to commence its sitting on 21st of July. 1969. Instead of getting a decision about nationalisation of Banks from the Parliament after due discussion the President on the advice of the Council of Ministers of the Government of India thought it proper to promulgate an Ordinance only two days before that day on 19.7.69, and thereby nationalise the Banks in India. 1969. Instead of getting a decision about nationalisation of Banks from the Parliament after due discussion the President on the advice of the Council of Ministers of the Government of India thought it proper to promulgate an Ordinance only two days before that day on 19.7.69, and thereby nationalise the Banks in India. Amongst the grounds of challenge to the nationalisation of Banks, an important ground was that since the parliament was to commence its session from 21.7.69, the President misused his powers in promulgating the ordinance, flagrantly violated the parliamentary traditions and deprived the members of Parliament of their right of taking a decision after expression of their views Hence, his action was unconstitutional. A specially constituted Bench comprising Sarva Shri J. C. Shah, S. N. Sikri, J. N. Shellat, v. Bhargava, J. K. Mittal, Vaidyalingam, K. S. Hegde, A. N. Grover. A. N. Ray, Jagmohan Reddy and I. D. Dua JJ. considered the question in all seriousness The argument was whether if the ordinance had not been issued, the heavens would have fallen. "What mischief could have happened if the ordinance had not been promulgated on the date in question." 182. Their Lordships observed in the judgment that according to the statement of objects and reasons a state of uncertainty was prevailing amongst the thinkers as regards the possibility Of nationalisation of Banks by the Government of India, and it was considered necessary that the State of uncerlaintly should be ended by immediate promulgation of an ordinance Their Lordships quoted from the judgment in Barium Chemicals Ltd, and others v. Company Law Board and others, AIR 1967 SC 295 , in which it has been held that even if the objects and reasons given for promulgation of the ordinance were not proper in our view we could not probe into the matter. The relevant portion is : "If he has, his action cannot be questioned because the inference is to be drawn subjectively and even if this court would not have drawn a similar inference, that fact would be irrelevant." 183. Their Lordships said that in the parliamentary form of Government, the President is the sole judge for whatever he does as a parliamentary act in the form of promulgation of an ordinance and no opinion different from what the Government has expressed, and upon which the satisfaction of the President rests, can be expressed. Their Lordships said that in the parliamentary form of Government, the President is the sole judge for whatever he does as a parliamentary act in the form of promulgation of an ordinance and no opinion different from what the Government has expressed, and upon which the satisfaction of the President rests, can be expressed. To quote from the judgment "The President is the supreme and sole judge of his satisfaction on such policy matters on the advice of the Government." 184. The Advocate General from his side put a very extra-ordinary argument before the Supreme Court in that historic case that it was not obligatory for the Central Government to disclose those facts or the information upon which the President had taken the decision. Rather, it was for those parties who are challenging the President's satisfaction to show that there were no facts justifying the promulgation of the ordinance. At last, the court declared the nationalisation of Banks as valid.185. We felt compelled to refer to the above case and especially to its paras 234 and 235, because we want to assure ourselves about the extent of jurisdiction that we have got in the matter.186. Although, as is well known. the jurisdiction of this Court under Article 226 of the Constitution has not been limited, various judgments of the Supreme Court which have the force of as good a law of the land as the constitution are binding upon us, provide guidance for exercise of our rights and define our limitations.187. A blazing instance of invalidating ordinances emerged on the judicial horizen in the Supreme Court judgment in Dr. v. C. Wadhwa v. State of Bihar and others, AIR 1987 SC 79 . It is that judgment which was pronounced in the case when the State Government of Bihar made repeated attempts to promulgate an ordinance, to allow it to lapse and then again to revive it through re-promulgation. When the matter was challenged before the Supreme Court, the court was amazed to know that at first the Governor promulgated the on inance but when the session of the legislative Assembly commented it was not replaced by any Act and was allowed to lapse. Simultaneously, with the prorogation of the Assembly session, when the ordinance had lapsed, died and decently hurried, the Governor in exercise of his powers under Article 213 repromulgated the same and revived it. Simultaneously, with the prorogation of the Assembly session, when the ordinance had lapsed, died and decently hurried, the Governor in exercise of his powers under Article 213 repromulgated the same and revived it. Hon'ble Shri Bhagwati Chief Justice in his judgment laid down important rules of guidance for the courts.188. There were four writ petitions in which the notorious practice of issuing not one but many ordinances by the Bihar State Government wes challenged. The notorious practice adopted by the Government was so terrific that hundreds of ordinances has been promulgated in the past one after the other. It these special petitions, The Bihar Forest Produce Ordinance, 1983, The Bihar Intermediate Education Council Ordinance, The Bihar Ring Supply Ordinance were challenged by Professor Gokhle of the Institute of Politics and Economics. Poona, who had made a deep study of the constitutional traditions and who was greatly concerned about the constitutional practices in vogue in the Indian politics. He was of the opinion that it was necessary to maintain constitutional traditions an I practices in a proper manner for the good of the nation. He, therefore. vent to Bihar and studied the mismanagement and misuse of the ordinances He found that it had become a habit of the Government to issue an ordinance, not to replace it by a Bill passed by the Vidhan Sabha and then after its lapse to issue fresh ordinance after proroging the Assembly session thus exhuming it from the grave through misuse of the Governor's powers.189. Expressing grave concern at such a sorry state of affairs, their Lordships said that this practice was a severe blow on the procedure prescribed by various articles of the constitution and the established traditions. The constitutional Bench comprising Hon'ble Chief Justice Shri Bhagwati and Hon'ble Judges, Sarva Shri R.N. Misra, G. L. Ojha, M M. Dutt and N N. Singh held as under: (B)-Constitution of India, Article 213, 174 and 32-Re-promulgation of the Ordinance by the Governor without getting them replaced by Act practice is in flagrant violation of constitutional provisions-Bihar Intermediate Education Council Oridance, 1985 un-constitutional and void." 190. It will not be out of place to say that to defend such a gross misuse of the Governor's powers to issue ordinances Shri Lai Narain Sinha appeared on behalf of the State Government and argued that to look into the circumstances necessitating promulgation of an ordinance by the Governor under Art 213 is not within the purview of the courts. In support of his arguments be cited Bhagat Singh & others v. Emperor, AIR 1931 P.C. 111 , Raja Bdhadur Kamakhya Narain Singh v. The Commissioner Income Tax AIR 1943 P. C 153 , Laxmidhar Misra & Others v. Shri Ranglal and others, AIR 1950 P.C. 56 , and R.C. Cooper v. Union of India, AIR 1970 SC 564 .191. The Hon'ble judges said that they failed to understand how the Above rulings could help the Bihar State Government, as they did not throw any light on the questions under their consideration. It was true that as per the Privy Council's judgment normally it was not the function of the courts to minutely examine the question of the Governor's satisfaction or to give a finding about the sufficiency of such satisfaction, but the question coming up before their Lordships was. whether the Governor could revive an ordinance which had lapsed and died.192. If the Governor started issuing ordinances one after the other after the Assembly session was over and thus discharging the functions of the Legislature, he would be acting beyond his jurisdiction committing a violation of the constitutional provisions and a trespass over the rights of the Legislative Assembly for which he had no powers. Their Lordships also said that there was not a single instance when a lapsed ordinance had ever been revived by the President after the session of the parliament was over. It was shocking that in Bihar the State Government had taken in their hands all the functions of the Legislature and started making laws itself instead of getting it done through the Legislature. This practice was adopted not for a few days or even few months, but for several years thus throwing to the winds the constitution itself. It was an assault on the constitution which could not be tolerated being highly unconstitutional.193. This practice was adopted not for a few days or even few months, but for several years thus throwing to the winds the constitution itself. It was an assault on the constitution which could not be tolerated being highly unconstitutional.193. Their Lordships expressed the hope that such notorious practice or heinous act would not be repeated anywhere in future and whenever an ordinance is issued an attempt would be made to get it replaced by a Bill passed by the Legislative Assembly in its very next session After such warning and reprimand they declared the Bihar Eduction Council Ordinance, 1985, 1983 (sic) as unconstitutional and awarded Rs. 10,000/-as costs made payable by the State Government, to the Professor who had filed the writ petitions after diligently carrying out the enquiry for the sake of observation of constitutional traditions.194. In Rajasthan State v. Union of India, AIR 1977 SC 1361 , also the Governor's satisfaction has come under discussion Shri Surana argued that this ruling is of no importance after the judgment in A. K. Roy v. Union of India, AIR 1982 SC 710 , because; whereas through the 38th amendment in the constitution. the satisfaction of the President before dissolving the Legislative Assemblies was made unchallengeable. by the 44th amendment the restriction against such challenge was removed The observations in para 27 of the judgment in the case of A. K Roy are as under: "The Rajasthan case ( AIR 1977 SC 1361 ) is often cited as an authority for the proposition that the courts ought not to enter the ' political thicket." It has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of President mentioned in Clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any Court on any ground. Clause (5) has been deleted by the 44th Amendment and therefore any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction." 195. Clause (5) has been deleted by the 44th Amendment and therefore any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction." 195. before we go into the facts of A.K. Roy's case, it would be proper to state that therein challenge had been given to the National Security Act under which people could be detained and which had been promulgated as an Ordinance. According to para 28 of the judgment one of the arguments advanced was similar to what Shri Surana has said that there being no reasons for satisfaction of the President in the Ordinance, such a satisfaction was open to challenge. Upon this, the Supreme Court held in para 28 that the Ordinance having already been passed as an Act, there could be no occasion to go into its importance.196. It will also be relevant to recall that even at that time the Supreme Court had said at page 1415 of their judgment in Rajasthan State v. Union of India, AIR 1977 AC 1361 . in para 144 that although ordinarily the President's satisfaction before promulagating an Ordinance could not be challenged under Article 346, but if any President says that he is dissolving the Legislative Assembly because the State Chief Minister being less than 5 ft. in height is unfit to hold that office, the argument or reasoning would not be in consonance with the Constitution. After posing the question, whether the Chief Minister being less than 5 ft. in height could justify President's satisfication, their Lordships themselves answered it in the negative. If the assembly is dissolved on such a ground, it would be impossible for us to accept the President's order as correct. However, if the reason for his satisfaction is such which is not malafide, we cannot probe into the matter in greater details.197. Before ending our discussion of this chain of judgments, we would also refer to a judgment cited by Mr M. R. Calla, which is K. N. Joshi v. Union of India, AIR 1972 Raj. However, if the reason for his satisfaction is such which is not malafide, we cannot probe into the matter in greater details.197. Before ending our discussion of this chain of judgments, we would also refer to a judgment cited by Mr M. R. Calla, which is K. N. Joshi v. Union of India, AIR 1972 Raj. log, because according to Shri Calla even after referring to Satyapal's case in Punjab, our High Court had said that the High Court was precluded from going into the question of satisfaction. In para 8 on page 171 it was said that when the Governor has the power under the Constitution to promulgate an Ordinance, his intention, motive or objective leading to such promulgation cannot be looked into so long as he has the power under Article 213.198. In our e pinion, with due respect to his Lordship Mr. v. P. Tyagi, who had decided that ce6e, even after the decision in Punjab case no such restriction can be put on the Court. The Governor has always got the power to promulgate ordinances in all cases under Article 213 of the Constitution, and if the logic in K. N. Joshi's case is accepted it would 'nean that the High Court and the Supreme Court would be helpless and dumb spectators of ordinances even though promulgated malafide or in violation of the constitutional provisions and they would not be in a position to grant any relief to preserve the inviobility of the constitution.199. Now before the effect of all these judgments on the challenge to the constitutionality of the Ordinance is examined and accepted or disallowed, a Icok into the articles which are important on the subject is necessary. Only two articles are important in the matter and they are Articles 174 and 213. The power to prorogue the session of the Legislative Assembly has been conferred on the Governor under Art, 174 of the constitution.200. The Governor need not be satisfied about the circumstances for issuing orders under Article 174. These powers are not restricted in any way, because Article 174 simply says that, "The Governor may from time to time prorogue the House or either of the House".201. The Governor need not be satisfied about the circumstances for issuing orders under Article 174. These powers are not restricted in any way, because Article 174 simply says that, "The Governor may from time to time prorogue the House or either of the House".201. Thus there is no restriction in Article 174 on the powers of the Governor as to when and in what circumstances he may prorogue the House it would be pertinent to state here that whereas under Article 213 certain grounds are necessary before promulgation of an ordinance i. e. the Legislature is not in session and the Governer is satisfied that circumstances exist which render it necessary for hire to take immediate action, under Article 174, no such restriction or limitation on the Governor's power has been imposed. While considering Article 174, reference to Article 163 also appears to be important. That Article runs as under: "163 (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his direction, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. (3) The question whether any, and if so what, advise was tendered by Ministers to the Governor shall not be inquired into in any court." 202. We have mentioned Articles 163, 174 and 213 at one place because after going through all of them together it would be clear that the powers of the Governor under Art 174 have no limitation or restrictions and the Governor need not disclose the grounds of his action. Even the circumstances which are needed for taking immediate action under Article 213 for the Governor being satisfied are not necessary under Article 174203. Even the circumstances which are needed for taking immediate action under Article 213 for the Governor being satisfied are not necessary under Article 174203. Hence the prorogation of the session of the Legislative Assembly depends upon the absolute discretion of the Governor, and the discretion is exercised in accordance with the advise of the Council of Ministers. The Governor by himself can neither summon the House nor prorogue it. It is also clear that the discretion to be exercised and the order to be issued under Article 174 is, if at all. subject to only those restrictions which have been mentioned in the above quoted judgments out of which Satya Pal's case is the most prominent.204. In Satypal's case, while expressing their opinion on the impugned Ordinance. the Supreme Court had said that there was no question of proroguing the House there. If such a question had been involved, the malafides and the motive to commit violation of the Constitution by the Governor might have been looked into. Before we further discuss the matter, we would, for a while, divert our attention to the facts of Satyapal Dang's case.205. The matter related to the Legislative Assembly in Punjab, where an extra-ordinary incident had occurred. In the fourth general election the Congress party had 43 seats out of the total membership of 104 in the House and no single party was in a majority. The other parties formed a new party, called the United Front Party. The Council of Ministers was formed under the leadership of Sardar Gurnam Singh, while Jogendra Singh and Dr. Baldeo Singh were elected the Speaker and the Deputy Speaker respectively.206. On 22 1 1.67, 18 members of the United Front Party including Sardar Laxman Singh Gill defected and formed new party with the name `Punjab Janta Party.' Sardar Laxman Singh Gill who became the Chief Minister summoned the sessions of the Legislative Assembly in which the budget came to be considered on 22.2 6k. There was great uproar in the House on the 6th of March and a motion of no confidence against the Speaker was moved. Leave was granted to consider the motion of no confidence, and the House was adjourned for next day. When on the next day the House met. There was great uproar in the House on the 6th of March and a motion of no confidence against the Speaker was moved. Leave was granted to consider the motion of no confidence, and the House was adjourned for next day. When on the next day the House met. Sardar Gurnam Singh raised a point of order and said that there was no compliance of Article 179 of the Constitution hence the motion of no confidence was not proper. The Speaker disallowed the motion of no confidence declaring that it was unconstitutional and deemed not to have been moved. Upon this, another motion of no confidence was moved and there was great commotion in the House.207. At that time the Speaker adjourned the House under R. 105(2) for two months and did not allow consideration of the mation of no confidence. This created a political earth quake because budget was required to be passed by 31.3.68, and the House had been adjourned upto 5.5.68, and without passage of the budget no work of any kind could be done. The Governor in exercise of his constitutional right under Article 174(2)(a) prorogued the Legislative Assembly on 1 1.3.68. The prorogation order was published in the Gazette on the same day and a copy of the same was endorsed to the Secretary of the Legislative Assembly. On 13.3.68 the Governor passed the budget in the form of an Ordinance No. 166 and on 14 3 68 resummoned the House to meet on 18.3.68. When the Speaker read out the above message of the Governor, a fresh controversy arose, but we need not go into the matter in greater details, because the House was again adjourned at 5 p.m. Slognas of -'Shame-Shame" were raised and some members kept sitting even after adjurnment. and the uproar continued. It was in these circumstances that the budget which had been passed by the Governor as an Ordinance came to be challenged.208. The Supreme Court held that the ordinance promulg ted constitutionally by the Governor to keep the democratic system alive is justified, and because in that case the ordinance had been promalgated for keeping the constitutional process and democracy alive, it was valid In that judgment the observations referred to were made in para 14. The Supreme Court held that the ordinance promulg ted constitutionally by the Governor to keep the democratic system alive is justified, and because in that case the ordinance had been promalgated for keeping the constitutional process and democracy alive, it was valid In that judgment the observations referred to were made in para 14. in which it was said that a thought can be given to the allegation of malatides against the Governor for promulgating an ordinance, it the Governor does so while the Legislative Assembly is in session. But in the Punjab case since the Speaker had adjourned the House for two months, the Governor had no malafides and promulgated the ordinance bonafide for keeping alive the Government formed constitutionally. Hence he was justifide in doing so. it was also observed in para 19 of the judgment that if the Legislative Assembly is adjourned for two months like this so that the budget may not be put before it. and a constitutional crisis is created endangering the democracy it was the duty of the Governor to act in the manner be did From opposite side it was argued that in such circumstances the President's rule have been imposed to facilitate the passing of the budget. The Court said that it was unfortunate that suggestions of this type were being offered because if a particular political party not in majority in Punjab, but in majority at the Centre had imposed its own rule through the medium of President's rule, it could not have been called as success of the democratic and parliamentary system. Whatever the Governor did was bonafide and cannot be called malafide, and hence it was necessary.209. Now the only question to be considered is, whether the action of the Rajasthan Governor was malafide. From the facts emerging in this case, it cannot be said with absolute certainty but it has been proved that extraordinary conditions were created in Rajasthan after the Deorala Sati incident. The plan to build a temple on the Sati site as a memorial was being pursued vigorously. From the facts emerging in this case, it cannot be said with absolute certainty but it has been proved that extraordinary conditions were created in Rajasthan after the Deorala Sati incident. The plan to build a temple on the Sati site as a memorial was being pursued vigorously. In these circumstances, when the Legislative Assembly had been summoned for 28th and 29th September, and the Governor was advised by the Council of Ministers on 30th that in view of the important and extra-ordinary circumstances prorogation of the legislative Assembly was necessary, was it possible for the Governor to take a decision contrary to the resolution of the Council of Ministers. and could such decision of the State Government be considered malafide? Since we agree with the argument of Shri Surana that the Governor's decision was in fact a decision of the Council of Ministers, if in the circumstances in which it was taken, the decision of the Council of Ministers can be called malafide, then the Governor's decision can also be simultaneously called malafide.210. While analysing the various articles of the Constitution, we have made it clear that it was in view of the circumstances prevailing at the time for various important reasons the Governor was advised to prorogue the Assembly. Now, we have to consider whether the action of prorogation was malafide. even when its objective was to prevent the contemplated construction of a Sati memorial at village Divrala, which fact is established by affidavits and other documents. Ordinarily the prorogation of the Legislative Assembly in itself cannot be held to be malafide or bonafide. It is obviously necessary to consider the motive or the objective with which it is done.211. The circumstances mentioned and empbasized by Mr. Surana which existed before progation were said to b,! that the Prime Minister summoned the Chief Minister to Delhi and expressing his displeasure at what had been done by the State Government, issued instructions for immediate action by latter or in some other manner. In tuffs connection Shri Surana read out some cuttings from the news papers reporting that the Prime Minister expressed his concern that no strict action had been taken and desired that such action should be taken now.212. In tuffs connection Shri Surana read out some cuttings from the news papers reporting that the Prime Minister expressed his concern that no strict action had been taken and desired that such action should be taken now.212. Even if Shri Surana's argument is accepted, the question is, whether if the Chief Minister of the State is persuaded by the Prime Minister to make son-e law or if the Prime Minister expresses his desire at which the Chief Minister or the Council of Ministers take a decision, the action can be called malafide. It is a fact admitting of no two opinions that the Prime Minister at the Centre and the Chief Minister of Rajasthan belong to the same political party The Sati incident at Deorala had created a law and order situation giving rise to a heated debate and agitation throughout the Country. With both the parties expressing their respective concern against each other the atmosphere all around was hotting up. In these circumstances, even if it is accepted that the Prime Minister and the Law Minister asked the Chief Minister or persuaded him or desired that some law should be made as was admitted and also shown by production of cuttings from news papers that the Law Minister and Shri Shiv Shanker expressed inability to make a central law in the conditions then prevailing) can the advice tendered or desire expressed be called malafide?213. We hold to it, we thought seriously over it and we come to the conclusion after considering all the aspects that in any controversy though it is a different matter what one side asserts and what the other one asserts, who is right and who is wrong, who is true and who is false, and in the circumstances of excitement and deteriorating law and order apprehended by the Cabinet of the State Government and in a special circumstance in the situation in which they made attempt to restrain the glorification or aggrandisement of Sati following the order of the High Court and then events that followed later, if in that context, and with the same object in view, though by direction of the Centre or of its own, the State Government, forthwith, without delay, post baste and without losing time, tries to enact a law with more simplified and prompt methodology, though the practicability of getting the same passed by the Legislature be there or not, in the hurry, there may be two views, because where Shri Surana asserted that the law can be passed within an hour, contrarily Shri Khan averred that it would have consumed seven days to pass the law. Even if we assume that the Legislative Assembly can pass the law post-haste if it so desires, then also it is not improbable that some time may be consumed on account of mutual ecnflict in views of some persons, parties or reciprocal contentions on any issue or the Legislative Assembly may be adjourned or it may pass it immediately forthwith, in unanimity; this all depends upon circumstances.214. But most important of all the questions is whether this act of the Governor or of the Cabinet can be sail to be malafide. The question presents itself "malice for what", "malice against whom", and "malice on what base." Shri Surana himself has submitted this fully and repeatedly before this Court by his arguments. So far as his arguments are concerned. he himself admits fully rather he is more vigorous that this law ought to have been enacted, even he goes to the extent of observing that the State Government caused delay in this task and failed to act promptly. Accordingly to his argument restraining the glorification, to declare it offence, by issuance of notifications in promptitude by State Government were not only necessary but indispensable for a democratic Government. Accordingly to his argument restraining the glorification, to declare it offence, by issuance of notifications in promptitude by State Government were not only necessary but indispensable for a democratic Government. The question is confined to this that according to him it was in contravention of the Constitution to enact this law without giving the members of the Legislative Assembly opportunity to give their thought or before their expression of views.215. In our opinion, there can be two views and it may also be observed that if any party or Government would have made a Bill in place of an Ordinance after summoning the Legislative Assembly soon or re-summoning it or giving it its decision on 29. 30 or 28 dates instead of 5th, none could cherish any objection or it could be the more democratic method. At the most the order of the Governor to prorogue the House, can be stated in this context probably to be improper.216. It was also in view that a law would be enacted by the Centre and a Central Minister returned after visiting here and later on, as is apparent from the cuttings of Shri Surana's letter, it was known after going of the Chief Minister and other Law Secretary and Advocate Central and others that the Centre is not in favour of making the law Even assuming these facts as they stand, we fail to understand, to whom, wherefrom and when the malice cropped up in these facts.217. Our view is that a circumstance of two opinions as to how the law be made through Bill or Ordinance can exist, but the malice of the Cabinet or the Governor is not proved in any manner, inasmuch as they thought of enacting such a law at the earliest by which according to their view glorification dignification of Sati. raising memorial to her, or doing other things for her, may be prevented and law and order situation may not be worsened and there be peace and powers might be conferred on administrative officers and persons to enable them to pass orders under this law.218. This was also argued before us that constructing shrines or memorials could be prevented under the Religious Buildings and Spaces Act. This was also argued before us that constructing shrines or memorials could be prevented under the Religious Buildings and Spaces Act. We do not wish to enter any more into this controversy as to which law can be more effective or under which and what time, can the State Government or its officers act effectually, the Court is not inclined to give its verdict after full scrutiny, nor is it necessary Diverse laws may be enacted on one subject and there may be such a necessity in this law which has been made in form of Ordinance. The most important question is to prevent the attempt of glorification or to punish them after the commission of Sati. Apart from this also, it contains several provisions which need not be discussed now and will be taken, for critique, and discussion, when challenge to them will be considered separately.219. But regarding power to bring out the Ordinance, right of the Governor, the rights of the Cabinet, we want to decide clearly keeping in view all the above facts, legal situation, circumstances. obtaining in Rajasthan and the decision of the Supreme Court, that there existed no malice of the State Government or the Governor in bringing the Ordinance, nor did they violate any Article of the Constitution. The Governor exercised his power in accordance with Article 174 of the Constitution and no abuse was made of this power in proroguation.220. The powers conferred in Article 174 of the Constitution can be struck down by challenge in Court apply in case of their abuse or transgression of the Constitutional limits, and not in case of improper proceeding. The Governor exercised his power in accordance with Article 174 of the Constitution and no abuse was made of this power in proroguation.220. The powers conferred in Article 174 of the Constitution can be struck down by challenge in Court apply in case of their abuse or transgression of the Constitutional limits, and not in case of improper proceeding. This is clear view, that neither a malice of the Governor is proved out of these, nor has the Governor infringed the Constitution in proroguing the Legislative Assembly after promulgating the order under Article 174 of the Constitution and we take the decision on this point that the challenge to the Ordinance in these petitions in form of abuse of Article 174 of the Constitution or malice or in form of violation of the Constitution, cannot be accepted and so this ground in the petitions challenging the Ordinance on this score is decided against the petitioners and it is clarified that the Ordinance made and the prorogation of the Legislative Assembly by the Governor exercising his power Constitutionally with the advice of the Cabinet is legal and Constitutional and lies in his jurisdiction, and the challenge to it is not acceptable by this Court on the basis of arguments advanced before us.221. The order of the Governor dated 3Cth September, 1987 is entirely legal and because the order of Governor dated 30th September, 1987 regarding prorogation is wholly legal, hence the promulgation of the Ordinance under challenge under Article 213 of the Constitution, on October 1, 1987 by the Governor is also legal, just and lawful. There is one more matter of more importance, which we will like to mention, while declaring it as lawful and that is that the Rajasthan Assembly passed this Ordinance on 10th November, 1987 in the very session of the Assembly commencing on 27th October, 1987 with an ordinary alteration in the definition of 'Sati'.222. In this context we would like to extract the judgment of Supreme Court delivered by Hon'ble Justice Y.C. Chandradhud, Vardharajan and Amiendra Nath Sen in para 28 of the case A.K. Roy v. Union of India, AIR 1982 SC 710 , under National Security Act in a challenge to an ordinance. In this context we would like to extract the judgment of Supreme Court delivered by Hon'ble Justice Y.C. Chandradhud, Vardharajan and Amiendra Nath Sen in para 28 of the case A.K. Roy v. Union of India, AIR 1982 SC 710 , under National Security Act in a challenge to an ordinance. They have laid down in this decision that one reason of recognition of legality of promulgating an Ordinance lies in that the Legislature has rightly ratified the Ordinance by means of an Act.223. It is also clear that when the Legislative Assembly passed this Ordinance into an Act, after according its approval and his Excellency the Governor gave his assent and the same has come into force as an Act, there is one more reason also in addition to declaring the legality, by dint of reasons. Mostly there remains no significance of the Ordinance after serving some special purpose wherein may be included some timely matters.224. Now on account of all these reasons, we declare the Rajasthan Sati (Prevention) Ordinance, 1987 (Ordinance No. 21 of 1987) made on October 1, 1987, valid rejecting the challenge made to it on the basis of Article 174 and 213 of the Constitution.225. Now onwards we shall give our thought to the challenges to various parts of the Ordinance.226. We have to consider the very sections and clauses of the Ordinance under challenge. We would like also to decide the challenge to section 19 of the Ordinanc. which has been challenged by both the sides along with the challenges made in regard to the definition of Sati and of glorification and other questions raised and challenges as to different sections thereof. On the one hand the petitioners before us, specifically Shri Surana, and on the other hand Sint. Arun Asafali have challenged Section 19 of this Ordinance and pari passu Section 19 of the Bill. Their submission is that whatever etiorts were made by the Legislature to prevent or prohibit Sati commission in the 18 sections. was withdrawn by one stroke o1 pen and the purpose of the Ordinance is lost. Smt. Aruna Asafali argued that Section 19 of the Ordinance and Section 19 of the Bill are not only against all the 18 sections of the Bill, but also in contravention of all the Articles of the Constitution in which honour, equal rights and emancipation have been guaranteed to women. Smt. Aruna Asafali argued that Section 19 of the Ordinance and Section 19 of the Bill are not only against all the 18 sections of the Bill, but also in contravention of all the Articles of the Constitution in which honour, equal rights and emancipation have been guaranteed to women. The challenge made by bhri Manak Chand Surana to the retrospective application from October 1, 1987 of the Act is also to be considered.227. The main object of this Ordinance and the Act has been to prevent and treat offences. making provision of punishment for the acts outside the purview of sections 306 and 309 o' Indian Penal Code and defining glorification and abetment to Sati and various acts as offences relating to Sati. Probably inspired by this reason & feeling. it was brought in form of a separate Bill so that legal contentions may be minimised. Ordinarily whatever lucid interpretation has been made of abetment is very wide and in glorification & abetment all kinds of cooperation, assistance. txtolation, acts before and after cremation are included. Hence the petitioners have tiled their challenge to the main section-separately If the sections pertaining to Sati and glorification therefore become unconstitutional, this Ordinance becomes dead, because these sections are the heart and lungs hereof. Probably had these sections not been needed, the Sati Ordinance also would have not been required228. Therefore, in our view. glorification, and abetment will have to be threshed out separately because of their definitions being of more importance. We would like to make it explicit that no significant argument regarding abetment was made before us nor any specific challenge made in this respect. Hence we consider no need to probe in the controversy of constitutional validity of abetment. it is known fact in the Constitutional field every bill is considered to be constitutional unless any party pints it out as unconstitutional. Therefore, when we have dismissed all the Constitutional objections, we proceed with the assumption that every part of it enacted by the Legislature, is legal unless the petitioners succeed in assailing it as invalid in law.229. Now we will like to consider about the constitutional challenges given to the different Sections of the Rajasthan Sati Prevention Act, 1 87. Therefore, when we have dismissed all the Constitutional objections, we proceed with the assumption that every part of it enacted by the Legislature, is legal unless the petitioners succeed in assailing it as invalid in law.229. Now we will like to consider about the constitutional challenges given to the different Sections of the Rajasthan Sati Prevention Act, 1 87. It has already been mentioned above that the Rajasthan Legislative Assembly has passed the Ordinance into an Act which has been made applicable as an Act after the assent of the President on 28 11.87. It was also made clear that the challenges given to different sections of the Ordinance shall be decided treating them to be the Sections of the Act without any formal amendment. It has also been made clear by all the parties that the challenge given to sub-sec. (3) of Section I of the Act may also be taken into consideration and derided. As such leaving aside the formal and technical objections, we direct our attention towards the various Sections of the Ordinance and the Act for purposes of importing substantial Justice.230. We will like to the give our judgment on the most significant issue of `Glorification' as defined in Section 2(b).231. Section 2(b) of the said Act of 1987 runs as under (b) `Glorification', in relation to Sati includes, among other things, the observance of any ceremony or the taking out of a procession in connection with Sati or the creation of a trust or the collection of funds or the construction of a temple or the performance of any ceremony thereat with a view to preputuating the honour of, or to preserve the memory of, a widow committing Sati.232. Generally the Penal Laws made so far, have been making provisions for the punishment for the Commission, abetment and criminal conspircy as an offence by different acts. For instance Section 109 (abetment) and Section 120-B (criminal conspiracy) of the Indian Penal Code had been made applicable to all other offences. An attempt to commit suicide is an offence under Section 309 of the Indian Penal Code and who ever abets. aids or instigates the person who commits suicide has been made an offender under Section 306 of the Indian Penal Code.233. An attempt to commit suicide is an offence under Section 309 of the Indian Penal Code and who ever abets. aids or instigates the person who commits suicide has been made an offender under Section 306 of the Indian Penal Code.233. Sections 109, 120-B and 306 of the Indian Penal Code are reproduced as under : "109 Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence. 120-B Punishment for criminal conspiracy-(I) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the some manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with tine c.r with both. 306. Abetment of suicide-If any person commits suicide whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to tine."234. But the person who commits suicide or who instigates to commit suicide or to glorify the person who has committed suicide or to glorify any particular act pertaining to suicide is not an offence under the Indian Penal Code Probably it is for the first time that the legislature has made Glorification' as an offence in the Ordinance and the Act, in the legal field. During the course of argument-, on all aspects this one issue has also arisen chat in cases of murders of National and International importance for instance, the glorification of the murders of Prime Minister Indira Gandhi or Mahatma Gandhi was not made or was not thought proper to make an offence by the legislature then what significant constitutional, legal social reasons are there so that the legislature thought to make 'Sati' as an offence for the first time in the definition of 'Glorification' in the Ordinance or the Act on the Sati action of a lady. As the scope of judiciary is limited we would not like to involve more in this dispute. To natural prudence it appears to be complex and an extra-ordinary situation, without giving any importance to any individual generally, but considering that the society has been giving too much importance to a particular custom of social evil as traditional faith, the legislature appears to have been influenced with a view to ban and put restrictions on the future repetion of such practice under the impression that it has got some significant religious background.235. Efforts made in the past by the persons from time to time to ban the Sati Pratha (custom of being Sati) has come in the narration above and needs no repetition, yet this evil custom had revived off and on as such it shall be proper to look to its history from the beginning. In Chapter 15 of Dharmashasira Shri P.V. Kane has given detailed description of Kati in its hostorical religious and social aspect. He has written that this practice was banned by Lord William Benting in the year 182). After that Edward Thomson has given lengthy narration of Kati-Pratha in its book. In the Schedule of his book he has given eye witnessed episode of Satis that took place in between 317 B C. to 1846 A D. I\,ax Muller has depicted about the practice of widow burning in the Greek civilisation and in Athens Eye witnessed narration has been given in Die-flew page '/4 to 19. In miscellaneous cases Vol. 1, 1837 page 114 to 116 Call Brook has narrated about the Sati episodes on pages 117 to 118 about the Sati episode in io3O, Sati episode of Surat is found in the book of Peter Mundey. In miscellaneous cases Vol. 1, 1837 page 114 to 116 Call Brook has narrated about the Sati episodes on pages 117 to 118 about the Sati episode in io3O, Sati episode of Surat is found in the book of Peter Mundey. Bara Buba has also narrated about the episode of Sati in Vijainagar State during the Mughal period.236. According to Kane, Vedas are silent about it. As such some years before Christ it originated in India an account of Brahmin influence. It does not find place either in Vishnu Purana or Dharmshastra Manu Smriti also does not say about it.237. This practice started in the Kathei sect of Punjab on account of the fear that the wife may not desert the husband or give him poison. It is said so by Mavilt and Felkoner.238. It is said in Vishnu Purana Shastra that the wife should either lead a virtuous life or sbeuld burn with the husband HINDI MATTER 374881H 239. There is a solitary instance of Madri of being Sati in the entire Mahabharat. Some times slaves were burned with the king, the same thing happened with the ladies, when Birma, Parma. Sakenari were ordered to burn with husband. There is a reference in Vishunu Puran that Deoki, Bhadra, Rohini and Madira wives of Vasudeo became Sati with their husband. There is also reference of burning of Rukamani, Gandari, Sebiya. Sabiya, Hemawati and Jamwati with Krishna. HINDI MATTER 374881G 240. There is no narration of being Sati or burning of widows on the death of Korawas in Stri Parva It is evident that Sati instances are found only in cases of the War-chieftains or rulers. Brahamins are restrained from I uuning the widows according to the depictions of Aparas Nepethency, Angirus and Vyagra-pad. The mother of Vedenti burnt herself alive on being chastised by Rawan. Kripi the wife of Dronacharya came to the battle-field on the death of her husband, but there is no narration in Mahabharat that she became Sati.241. Therefore, it is, evident that the narration of Sati among the Khsthriyas and Brahamins is only of the later period. Rati The wife of Kamdeo entered into pyre when her husband Kamdeo was burnt by Shiva but was stopped by the super-natural voice (Akashwani). It is so depicted by Kalidas in Kumar Sambhava. Therefore, it is, evident that the narration of Sati among the Khsthriyas and Brahamins is only of the later period. Rati The wife of Kamdeo entered into pyre when her husband Kamdeo was burnt by Shiva but was stopped by the super-natural voice (Akashwani). It is so depicted by Kalidas in Kumar Sambhava. There is also narration of burning of Yashomati the wife of Prabhakar Vardhan; but this happened before the death of husband. Vanchatta has criticised Ahumarika in Kalambari. Gandhari burnt herself alive after the death of Dhritrastra. It is so said in Bhagwat Puran.242. Many instances of Sati are also found during the Gupta Dynasty viz, the wife of one Gupal who was killed in the battle-held, Rajawanti the wife of Dharmadeo and Bekalia the wife of the Sudra. Kama Bai wife of ,Maiho Rao Peshwa was burnt in 1772. Shranga and Angiras say that she, who would burnt with her husband, shall go to Heaven and shall remain there for three and half crores of years. Madhatithi has opposed it and has called it an adharam (evil).According to Prof. Kane formerly it was only in Bengal that the Sati practice was in abundance, because Daya-Bhag law was applicable there, that gives the property to the wife. Callbrook who was the scholar of Sanskrit and who mostly resided in Bengal expressed in l'i95 that the blind followers of Sati are now rare in Bengal. If the Sati system was in practice in India, how the Britishers who have enslaved the o,.e-fourth world by force, could oppose it. This argument of Prof Kane appears to be curious. According to Kane. if France can feel proud for the reason that Nepoleon can enslave the entire world, then what objection can be there to any one regarding the sacrifice of the women of India.243. We have quoted Dbaramshastra and specially Prof. Kane for the reason that Sati system was in practice in the country some time and in earlier periods also it was not accepted good (according to Dharma) but was mostly known as evil (Adharmiki. Burning out b~ will was accepted as praiseworthy but burning by farce was objectionable. We agree with the view of Prof. Kane this English people cannot beast that they have laughed at or defamed India. Burning out b~ will was accepted as praiseworthy but burning by farce was objectionable. We agree with the view of Prof. Kane this English people cannot beast that they have laughed at or defamed India. But we are of the opinion that if the existence of this cust was found at some or the other time in the hidden form. then we have made it clear in Article 25 of the Constitution to call it a procedure for an attempt of committing suicide by the ladies and if there remains any doubt then repeatedly we have announced in Articles 14, 15, 16, 21 and 51 A that a lady does not come in the category of either servant or slave nor she can be permitted to he burnt on the pyre, because husband and wife both are equally entitled to lead an honourable life with equal respect. (i) S. Cromwell in his book "Raja Ram Mohan Rai his era and ethics"(1) has written that word 'Sati' is an out-come of word "Sat". According to Atharva Ved during the Vedic Era, the meaning of Sati was to permit a widow to sleep with the husband the pyre, and after that to remarry and lead a new life with second husband. Rig Veda also commands that "Arise after sleeping on the pyre with the husband and enter into another new house. After that the pyre of the d-ad body of husband be burnt". Nearabout the sixth centuary the Purohits, in the Brahamine influence, dominated the field and to dominate over the properties of the widows converted the word "Agre" into "Agne" and tried to give to this custom of widow-burning a shape of religion; but even then it was accepted near the river Ganga in Bengal and in some parts of Rajputana and was not accepted in other parts of India. Such happenings did take place in some part of Punjab sometime or the other and its some part of Madras of Telegu area, Tanjore. Calcutta, Bardhaman, Hugh. Nadiya and 24 Parganes. This custom prevailed more in the 19th Centuary, because in Daya Bhag Hindu law was followed there, ladies had right over the property and people wanted to grabble it by burning them. During the time of Warren Hastings attempts were made for its recognition; but the English Officers personally opposed it. Calcutta, Bardhaman, Hugh. Nadiya and 24 Parganes. This custom prevailed more in the 19th Centuary, because in Daya Bhag Hindu law was followed there, ladies had right over the property and people wanted to grabble it by burning them. During the time of Warren Hastings attempts were made for its recognition; but the English Officers personally opposed it. During the time of Lord Corn Wallis in the Near 1779 when the Collector of Shabadke was summoned for an explanation for not permitting Satis the reply submitted by him is historical. M. H. Brook said "We shall be completely tolerating and recognising the Hindu customs and blind faith of Hindu religion, but the evil act by which the entire humanity is earth-quaked and oppressed, I can never permit its happening within my jurisdiction unless there is some special pressure on me or you give an order". The Governor General asked the Collector Brooh not to use police force for preventing the Sati. But when it was found that young and delicate girls are burnt after putting them under intoxication on their being widow for the purpose; of grabbling their property. the English Rulers could not remain dumb spectators. In the year 1805 Lord Sallesely restricted and limited it. The Pandits accepted that the widows should not be burnt forceably. though the Sati episodes raised from 378 to 2355 and n Calcutta alone the number increased from 253 to 1528 in the period from 1815 to 1818 on account of the time influence. 244. When the Chief Justice asked Mrityunjay Vidhyalankar to comment on Sati in the Civil Court, he replied that there are no such commands in the Hindu religion. But who on account of grief or pain voluntarily wants to die or commit suicide there is a procedure of widow burning. According to Vidhyalankar leading chaste life is superior to widow burning. 245. In the year 1811-1812 Raja Ram Mohan Rai started a new revolution against Sati. He made attempts to save the widows from burning by roaming on the cremation grounds. Though he was threatened of the Curse of SaTi on account of preventing Saties, yet he did not detach from his revolutionary idees and Continued the revolution in Calcutta with greater rigour.246. According to him Manu Vedant, Geeta. He made attempts to save the widows from burning by roaming on the cremation grounds. Though he was threatened of the Curse of SaTi on account of preventing Saties, yet he did not detach from his revolutionary idees and Continued the revolution in Calcutta with greater rigour.246. According to him Manu Vedant, Geeta. Smriti and (Shastras) scriptures did not recognise suicide and the widow burning is said to be a greater evil than that Raja Kam Mohan Roy published anti-Sati literature in the Near 1816. He said that the memoirs of Angira, Vyas. Harita, Vishnu and Gautama giving encouragement in this respect has not been given recognition by Manu and the widows are asked to lead happy, peaceful and chaste life and that much is their true religions. Ram Mohan Roy proved that murder of the ladies is anti-religious. English Rulers encouraged the views of Ram Mohan Roy and published in the Calcutta Gazette in the year 1818.247. A new Philosopher has given a new meaning to the scriptures and now the History tainted with blood of the Indian widows shall be changed. On 0 2.1820 Raja Ram Mohan Roy published an anti-Sati literature in the name of second conference and dedicated it to Warren Hastings. He raised voice against the atrocities of men over women and invited them to lead life of equal status with the men.248. The revolution of Ram Mohan Roy revolutionised the people and Samachar Darpan and the Sumad, Komadi raised a dreadful storm against Sati. Calcutta General Reference of India Gazette and Bengal Punarjagaran supported Raja Ram Mohan Roy through English press. Though Samachar Chandrika opposed Ram Mohan Roy by supporting Sati. Now Lord Welesolly understood its importance but he felt himself weak to speak against the traditional blind faith of evil custom.249. In the year 1828 Lord William Benting who was disciple of general Benthem came as Governor General and he contacted with Ram Mohan Roy. Both united together treating the evil practice of Sati as anti Hindu religion banned it. Though Willson gave a warning to Renting that it shall create dissatisfaction and there will be no success. Banting did not agree with the advice of Willson and agreed with the advice of Ram Mohan Roy.250. On 10th Nov., 1832 Brahama Samaj Calcutta congratulated the king of England for banning Sati and getting it approved as proper by the Privi Council. Banting did not agree with the advice of Willson and agreed with the advice of Ram Mohan Roy.250. On 10th Nov., 1832 Brahama Samaj Calcutta congratulated the king of England for banning Sati and getting it approved as proper by the Privi Council. Thanks were also given to Raja Ram Mohan Roy for his unfatiguable efforts251. We have borrowed the above narration from the book "Raja Ram Mohan Roy his Era and Ethics" written by S. Cromusell. Contemprary writers and historians have also supported it.252. It is evident that attempts were made to keep the Sati custom in India for sometime by giving it a religious shape yet the Society never accepted it except a few exceptions and it has been continuing in limited form as an evil custom and is also facing restraints. Ultimately widow remarriage and widow chaste life was held in confirmity with the scriptures and in every age it was held as such.253. Dr. Priti Prabha in her book ' Hindu Vivah Mimansa" has written at page 167 that the two Mantras of Rig Veda are highly debatable. Macdanal and Keeth have taken them as indicative of Remarriage, but at the same time it has also been written that probably both these two Mantras may be the Indicative of Niyog only (to have intercourse with a man other than the husband to get children) and not of remarriage. To call this practice purely by name of remarriage shall be hardly proper. Swami Dayanand has clearly called both these two mantras of Rig-Veda as indicative of Niyoga. Dr. Kane has not given any conclusion but has only written that it cannot be ascertained as to what these Mantras are indicative among, Niyog, widow re-marriage or widow entering into fire.254. Even accepting the Rig Veda Mantras as debatable one Mantra of Atharva Veda says about re-marriage with certainty. "If a woman after getting married with one husband re-marries with another and both of them give one she-goat and five plates of rice, then both of them shall not separate from each other. The second husband gets the equal rights of her re-married wife. According to Dr. Kane the appropriate conclusion of this Atharya Veda Mantra is the marriage of a betrothed demsel at another place rather than the widow re-marriage. But this much is certain that at the time of Atharva Veda widow re-marriage was not prohibited.255. The second husband gets the equal rights of her re-married wife. According to Dr. Kane the appropriate conclusion of this Atharya Veda Mantra is the marriage of a betrothed demsel at another place rather than the widow re-marriage. But this much is certain that at the time of Atharva Veda widow re-marriage was not prohibited.255. The Law author Vashistha has prescribed re-marriage during the life-time of the ht.sband or after his death. She who accepts another husband leaving an impotant or insane husband or after his death is called 'Punarbhoo' and her son is called "Punarbhava" Narad has added one more speciality to this saying of Vashistha. When the husband is destroyed, or is important or has fallen, then the woman has right to have another husband in these five contingencies. Bodhayak has recognised 'Punharbhoo' to that woman who accepts another husband after leaving her impotant or out-caste husband. Kotilya has also sanctioned widow re-marriage. The lady whose husband has gone to another country or has become an asetic or is dead should re-marry with the brother of husband after crossing the period of seven menses If the husband has no brother then she can marry with sapinda or with any other person of the caste of her husband. Rishi Dayanand and others also played an important role. The rulers of Rajasthan one after another from time to time made laws by orders by which attempts were made to put check on this custom Specially the State of Jaipur in the year 18 41 made the law for prevention of Sati with the support of prominent Sardars and Chieftains like Rajguru Bhatta Sukhram, Seth Manik Chand and the Thikanedars of Jnilaya, Packewar, Ladanu, Amroha, Duni, Morija, Mohanpura, Chokara, Mandrela, Diggi, Bisau, Mandawa, Barli, Parasrampura. Nedar etc. Being influenced by the success of getting passed this law in Jaipur A.G G. Major Jarswi issued directions in the year 1845 to the political agents of the States of Jodhpur. Udaipur, Bikaner. Kota, Jhalawar, Bundi. Jaisalmer. Nedar etc. Being influenced by the success of getting passed this law in Jaipur A.G G. Major Jarswi issued directions in the year 1845 to the political agents of the States of Jodhpur. Udaipur, Bikaner. Kota, Jhalawar, Bundi. Jaisalmer. Dholpur, Sirohi, Banswara etc, that they should be asserting their personal influence and should ask the rulers to issue ordinance for prevention of Sati In the year 1846, by the declaration form of all the prominent l-eudals in the State of Jaipur orders were issued to all the Jagirdars and Thanedars, Jamadars and Patels etc that provision of punishment has also been made for those who will help in happening of Sati.256. Sati Pratap was declared illegal in Alwar in the year 1830, Jaipur 1844, Dungarpur, Banswara and Partapgarh 1846. Jodhpur and Kota 1848 and in the Udaipur State in the year 1860. We would like to quote the Royal order (Farman) issued by the Maharaja of Kota in the 19th Centuary here HINDI MATTER 374881G 258. That during that time the sentence of imprisonment and confiscation of Jagir was found in all States.258. Village Vamankhcda was confiscated for 10 years from Sadhu Singh in the year 1863 by the State of Alwar. Dhul Singh the Manager of Village Gatr Badesar of the State of Bikaner was sentenced with seven years imprisonment and his brother was sentenced for ten years imprisonment. Rs. 200/- as fine was realised from Thakur of Ghanerao and village Mir Buriya was resumed by the State of Jodhpur. In the State of Jaipur either the power of Patel was confiscated or he was imprisoned. Fine Rs. 500/- was realised from the Nazim and Rs. 1000/- fine was realised from the Villagers. On being Sati her relatives were imprisoned for 7 years and the supporters were imprisoned for three years. In the State of Jaipur fine of Rs. 500/- was realised from the residents of village Jalkbeda, and 68 spectators were sentenced with 7 years rigorous imprisonment and a fine of Rs. 5,00/- was imposed on ten persons each and a fine of Rs. 250/- on 22 persons each. In the State of Mewar 'Kher' was imposed on the expenses of Raja Govind Singh of Baheda and a warning to Lakshman Singh of the Village.259. In the State of Jodhpur an eleven years old girl was compelled to become Sati. 5,00/- was imposed on ten persons each and a fine of Rs. 250/- on 22 persons each. In the State of Mewar 'Kher' was imposed on the expenses of Raja Govind Singh of Baheda and a warning to Lakshman Singh of the Village.259. In the State of Jodhpur an eleven years old girl was compelled to become Sati. The charans of villaf a Malans burnt a Charan lady to compel her to agree to their demand regarding land. In the year 1849, the Rani of Maharaja Sardar Singh of Udaipur was compelled to become Sati and after the death of Maharaja Swaroop Singh, the Rani's refused to become Sati.260. Anjana Bai was compelled to become Sati. Our object to refer about these happenings or mis-happenings is that here in all the ages attempts have been made against this evil custom of Sati even then off and on evil episodes of Sati did take place. Though the Raja, Maharaja and Jagirdars have made efforts in this connection, imparted hard punishments resumed and confiscated Jagirs, realised fine suspended the Thanedars yet this evil custom off and on continued. After coming into force of the Constitution it was expected that the new era shall start, social justice shall prevail in Bharat and women shall get equal right with men, from generation together the atrocities that were committed with the women folk the treating them low shall come to an end and they will be put to equal respect with the men. Even after that if these evil acts take place even off and on. then the legislature going at a bit distance from the procedure of offences, if includes even an attempt of Glorification into an offence, then this amounts to carry out and discharge the constitutional responsibility for purposes of giving relief to the citizens from atrocities, as social justice.261. Even after that if these evil acts take place even off and on. then the legislature going at a bit distance from the procedure of offences, if includes even an attempt of Glorification into an offence, then this amounts to carry out and discharge the constitutional responsibility for purposes of giving relief to the citizens from atrocities, as social justice.261. It shall be proper to see in this context that in the year 1958, in the case of Tejsingh v. State, 1958 RLW 19 , when an appeal was filed by the accused persons against the order of conviction in a matter of Sati of a Brahamin lady in the High Court of Rajasthan, Honourable Chief Justice Shri Wanchu and his companion Justice Shri Dave instead of reducing the sentence of the accused persons, enhanced the sentence from 6 months imprisonment to 5 years imprisonment under Section 3C6, 1.P C. treating the matter of an extra-ordinary circumstances and expressed surprisingly strange grief.262. Para No. II of this judgment is worth reproduction: "The learned Sessions Judge has sentenced the accused to six months rigorous imprisonment. The reason be has given for this ridiculously lenient sentence are rather strange in the middle of the 20th Centuary. He is still not sure whether the people are wrong or right in their adoration of Sati, though the law in this country has declared abetment of suicide to be a crime for over a hundred years. He seems to sympathise with the view of the people that it is their religious duty to help the woman who wants to become a Sati. He has also made the observation that the custom of Sati is a well known custom and judicial notice can be taken of it. We are surprised at this. This custom which was prevelant upto 1833 was forbidden more than hundred years ago b~ law. We are, therefore, of opinion that a sentence of six months rigorous imprisonment for such a barbaricus act of abetment of Sati is ludicruous. We are surprised at this. This custom which was prevelant upto 1833 was forbidden more than hundred years ago b~ law. We are, therefore, of opinion that a sentence of six months rigorous imprisonment for such a barbaricus act of abetment of Sati is ludicruous. It is essential that people should respect the law which in this case is also, in our opinion, right particularly a law which has been in force for over a hundred years In such cases of Sati, therefore, that take place off and on we are of opinion that a different sentence is called for, Taking all circumstances into account, we consider that a sentence of 5 years, rigorous imprisonment is the minimum that we can give to these accused." 263. We have mentioned above that during the regime of Rajas and Maharajas there are instances of 7 to 10 years imprisonment and also of death sentence.264. In cases of Ramdaya v. Emperor, AIR 1914 All. 249 , Emperor v. Vidyasagar AIR 1928 Pat. 497 and Kindarsingh v. Emperor, AIR 1933 All 160 , on abeting Sati such sentences were inflicted. Not going far away, in a distant area of Dungarpur where the son of a Thikanedar and his two other brabmin colleagues who participated in abetment of Sati and helped, were sentenced and fine was imposed on the Thakur himself.265. So, in all the ages, the Rajas, Maharajas, Jagirdars and Emperors, discharging justice have made efforts to stop ban and punish those persons who abetors of it. In the context of the Act if the glorification of Sati is declared an offence in the year 1987, it cannot be said to be unconstitutional in any way. Rather we would call if today that the legislature has delayed by 37 years from the year 19:0 to 1987 in understanding spit it of the Constitution. It was the duty of the executive and legislature to make it known to the public by means of publication that any episode of Sati will not only be against law but will be strictly punished.266. It was the duty of the executive and legislature to make it known to the public by means of publication that any episode of Sati will not only be against law but will be strictly punished.266. The second objection raised with respect to the definition of Glorification is that while this word the legislature has not made it effective but has only given instances among other things as to what acts may amount to glorification Because the Act provides provision of punishment, as such it roust be exact and without any ambiguity. Shri Sharoma has challenged the definition of glorification on this gound and has prayed for its striking down. In my view it is the duty of the legislature to define a word and if the legislature does not define it, then whatever the meaning is ordinarily given to that word in the dictionary should be followed. This word glorification should be understood in its literal sense. in this way the meaning of word glorification would be to give honour or sing the praises. This is called glorification in English. As such if the legislature. while defining it, has, if, said that among other things, any ceremony or the taking out of any procession, or the creation of the trust or the collection of funds or the Constructions of a temple or the performance of any ceremony there at with a view to perpetuating the honour of or to preserve the memory of a widow committing Sati, then we cannot say that it is against the constitution. To call or declare the sections of any law made by the legislature as unconstitutional it is necessary to see before such decision that either it is again.,t the articles of the Constitution or it is beyond the jurisdiction of the legislature. It is fact that to deliver the speech or to raise slogans is not specifically included in it; but among other things if some specific acts are mentioned then the only meaning is that any act don_ by mouth or by gesture or apparently attempts are made to glorify then it is covered by this definition. A such we do not feel any hesitation in declaring it constitutional and we want to decide that the definition of glorification is constitutional and no constitutional mistake is there in it and it is not unconstitutional.267. A such we do not feel any hesitation in declaring it constitutional and we want to decide that the definition of glorification is constitutional and no constitutional mistake is there in it and it is not unconstitutional.267. It is also a well known truth that the legislature when defines a word may give an extended meaning to the word for its development, apart from its ordinary meaning which is called an extended meaning in English. To act as such is within the power of the legislature. That power cannot be challenged. For instance if in the ordinary context the definition of the term `agricultural produce' as defined in the Rajasthan Agricultural Produce Law is taken into consideration it appears to be impractical and extraordinary. According to that, agricultural produce is that which has been declared by the State Government as agricultural produce by the notification and in this order, Camel, Ox, Hen e:c. are all known as agricultural produce. which ordinarily for an ordinary man is not only proper in understanding but appears to be extra-ordinary So it is said that the legislature can do all things. Specially in England it is said about the legislature that it can do every thing except to change the sex of a man or a woman. She is omni-potent. As such we take the definition of 'glorification' as legal.268. Many objections have been raised about the definition of 'Sati', Specially the objection, regarding which we have said above, after rejecting the arguments of Shri Sharma, that it is dis-respectful to religion To reduce the meaning of 'Sati' only into 'widow burning' is a great injustice with Sati we have explained above and want to explain it again that one word carries different meanings according to its context and the particular place of its use. The meaning of word 'Sati' which has been recognised from time immemorial is 'Satyr' and also Chastity with 'Satya' meaning thereby that the lady or the woman who possesses a virtuous bright character and no doubt is known about her character is called a 'Safi' and this importance to the word has ban given by calling the wife of Maryada Purushottam Shri Ram as Mahasati and which is used in the entire society and the Nation as a word of honour. As such the ordinary meaning of word 'Sati' is not only widow-burning, it refers and has relationship with the virtues of a lady of her character. But the legislature can give the. meaning to a word in its limited circle and so has been done in the Act. So we want to make it clear that the definition of word Sati is limited only to extent of this Act, and if any one uses the word Sati or attempts, to glorify the Sati or performs worship of the temple of Sati or recites prayer in the context which has got no concern with the widow-burning, but refers to the glorification of only to the bright, spotless and pious character of a lady then it will be neither an offence under this Act, nor it shall be considered within this definition of Sati.269. Now we come to part v. of this Act. The arguments of Shri Sharma and other learned counsels regarding burden of proof are that it should not be placed on the so-called accused persons. Suffice for it to say that there is no provision of any kind regarding this matter in the constitution. It is for the legislature to see on whom it wants to place the burden of proof in the criminal procedure. In this respect there is no rule having authority either of law or of the constitution.270. For a long time in the English law given to us by Lord Clive of East India Company and produced by Mecaley in this country it has been continuously said that it is better to acquit 100 guilty persons rather than to convict an innocent man, and it has also been said that in all circumstances the Burden to prove the guilt must remain on the prosecution. But off and on the legislature has partially refused to accept it, looking to the increasing offences. Tilt difficulty in production of evidence and with the changes in the other values, in the economic offences, in many other contexts and where there are law of prevention of corruption and other economical offences the burden of proving the offence and production of evidence has been partially changing.271. In this connection, we are of the opinion that it is beyond the purview of the court and the legislature is quite independent as to on whom wants to put the burden of proof. In this connection, we are of the opinion that it is beyond the purview of the court and the legislature is quite independent as to on whom wants to put the burden of proof. Recently when in a case Mathura Tukaram and other v. State of Maharashtra, A.I.R. 1979 SC 185 the entire intellegertia and the women class of India, looking to the flood of offences of rape on females. created an earth quake in the Parliament the existing method of burden of proof and production of evidence to pro e that at the time of commission of rape she did not make any protest has been changed and shifted from the lady class, to the accused person in certain cases of rape Such as when a woman is raped in to four corners of the police station or she is raped when she is dependent upon the officer in the office. In this way change has been brought in many dowery cases to give protection to the ladies. It was all an awakening among the ladies and the demand of time and the society. So we do not understand that Sec 16 shall be unconstitutional only on the ground that in special circumstances the burden of production of evidence has been kept on the accused.272. To make the context easy Sections 16, 17, 18 and 19 of the act are reproduced under : "16. Burden of proof-where any person is prosecuted of an offence under section 3 or section 4, the burden of proof that he had not committed the offence under the said section shall be on him. "17. Obligation of certain persons to report about the commission of offence under this Act (1) All officers of Government are hereby required and empowered to assist the police in the execution of the provisions of this Act or any rule or order made thereunder. (2) All village officers and such other officers as may be specified by the Collector and District Magistrate in relation to any area and the inhabitants of such area shall if they have reason to believe or have the knowledge that Sati is about to be or has been committed in the area shall forthwith report such fact to nearest police station. (3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. "18. Act to have over-riding effect-The provisions of the Act or any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. "19. Removal of doubts:-For the removal of doubts, it is hereby declared that nothing in this Act shall affect any temple constructed for the glorification of Sati and in existence immediately before the commencement of this Act or the continuance of any ceremonies in such temple in connection with such Sati." 273. Similarly we will like to consider section 17 of the Act. )t has been specifically mentioned in it that it is the duty of all the Government servants to help the police in the implimentation of this law. Gram Sewaks and other persons, the list of which shall be prepared by the Collector, shall, in case they suspect about the happening of Sati or get information, lodge a report in the police station and if they do not act as such, they shall be punished by an imprisonment for 2 years It has been argued before us that according to Section 1R, priority has been given to this law, any person who fails to give information for the reason that he is ill, or is unable to move or is week shall be punished, though they are exceptions according to the Criminal Procedure Code. As such it should be declared unconstitutional. We are of the view that even after attaching priority, the exceptions in the rule of procedure, shall also be applicable there also, and even under this section the accused shall he able to plead that under the above special circumstances, he is innocent, because he could not go to inf ,rm under the special reasons which were of such a nature where it was impossible to go and inform.274. It is quite necessary to point out here that we are considering over these petitions in the year 198 But Bengal Sati Regulation made in the year 1829 also contained similar provision. It was the duty of all the Jamindars, Talukdars. owners of land. It is quite necessary to point out here that we are considering over these petitions in the year 198 But Bengal Sati Regulation made in the year 1829 also contained similar provision. It was the duty of all the Jamindars, Talukdars. owners of land. Nayabs realising Malgujari and Officers, not only to inform but also to go to the police station and help the police for its prevention. Anyone who will neglect or avoid to do so shall be declared an offender and shall be punished for not discharging his duty. It is clear that if during the British regime, this duty was cast on the citizens, thinking it necessary for the social reform, then in the new light of constitution and new expectations engrossed on the horizen, it becomes the duty of every citizen of India that, in case any offence is going to be committed in his presence he should inform and try to get it prevented. Even in absence of this Section it is the duty of every citizen to do so according to the prescribed constitutional duties. As such we declare it to be the constitutional duty.275. Now we come to the important section which has been challenged by Shri Manak Chand Surana, Sbri Yadunath Singh and Shrimati Arana Asaf All by way of separate writ petitions This challenge is absolutely different to the other challenges The reason as that, in all other challenges attempts are being made to get those sections or other relative sections, declared unconstitutional by which the custom of Sati is made an offence, so that, the aim and object of the revolutionary and progressive law, which has been made against the injustice and oppression of the Indian woman that has been continuing from generations together, may be struck down or some of its sections may be put to an end rendering it lifeless, inactive and dead On the other hand, on b hall of Shrimati Aruna Asaf Ali and Shri Yadunath Singh. arguments are advanced by Sharma Kapila Hingorani and Shri Manak Chand Surana Advocates, that whatever that has been aimed at in favour of the ladies in the Ordinance or the Act by the efforts of the legislature Section 19 is truing to make it lifeless and has been providing a protective umbrella to some strange attempts of glorification of Sati putting them under the banner of law. Shri Surana and Shrimati Hingorani have argued in clear words, that to repudiate the determinations, Section 19 has come as a messanger of death for the legislature, and shall lead it to the border of death.276. They put forth the argument, that this section has given a new life to the temple that existed on 1.10 87 and the ceremonies that are performed pertaining to Sati in the temple. This is absolutely against the basic intention of the legislature with which the Act was enacted. It is quite clear from the object of the ordinance and the Act wherein it has been said that this Ordinance is promulgated regarding Sati or its glorification and other subjects having relation or reference with it.277. The learned Advocates have argued that it is not a matter of contra- diction but is of conspiracy, and where the legislature has worn a superfluous master to make social reform and put an end to the custom of Sati, due to lack of aim and strong will whatever was given by one hand has been taken back by the other hand. Shrimati Hingorani has argued even to this extent that Section 19 has given good-bye to all the determinations that were made by our country by signing the convents at international level for giving protection to the ladies. In this connection she has invited our attention towards the resolution No. 217 dated 10 12 84 of the International General Assembly (I) by which the International Bill of Human Rights was declared. Without making any discrimination on the ground of sex. Sec of the Bill provides equal rights for all against the sex discrimination. Specially not only on one but on several occasions at International levels India has put her signatures and has expressed her determination (2). The declaration of the United Nations dated 20.11.63 is significant wherein it has been said that the State shall take care for the protection of the ladies. Similarly, she has also quoted the declaration of the General Assembly of the United Nations made by resolution No. 2263 on 7.11.67 (3) to prevent discriminition against the ladies. The declaration of the United Nations dated 20.11.63 is significant wherein it has been said that the State shall take care for the protection of the ladies. Similarly, she has also quoted the declaration of the General Assembly of the United Nations made by resolution No. 2263 on 7.11.67 (3) to prevent discriminition against the ladies. She has invited our attention to Section 5 which runs as under : "All appropriate measures shall be taken to educate public opinion and to direct National aspirations towards the eradications of prejudice and the abolition of customery and all other practices which are based on the idea of inferiority of women " 278. The State should make such laws in conformity with the public opinion, by which the practice of Sati among ladies and discriminatory treatment with them may be stopped and the ill-will against them may be stopped or put to an end for ever. Section 5 of this resolution declares on internatronal level that the women shall have all those rights on all occasions like marriage etc. and neither the nationality shall be imposed on her on account of her husband nor any other sort of injustice shall be caused.279. We need not comment further on this topic, since the framers of our Constitution have given an honourable status to the ladies in the Constitution of India Not at one but by many provisions in the Constitution. the determination for the honour of a lady has been expressed. It has been declared in the preamble of the Constitution that the honour of the individual shall be protected. Equal rights have been provided in Article 14 without any sex discrimination. We have recognised the Fundamental Rights and under clause 3 of Article 15 special provision has been provided for the special benefits to the ladies and girls A man shall be deprived of his personal liberty or life only in accordance with the established law vide Article 21. This Article makes an important announcement by which no one can deprive a man of his physical liberty and the Supreme Court not only in one but in so many judgments has pronounced in notable words that every citizen of India has got a right of personal liberty and the physical liberty cannot be deprived. This Article makes an important announcement by which no one can deprive a man of his physical liberty and the Supreme Court not only in one but in so many judgments has pronounced in notable words that every citizen of India has got a right of personal liberty and the physical liberty cannot be deprived. Not only that, but considering it to be inadequate the parliamentarians specially amended the Constitution by incorporating Article 51(A) (e) to give the highest level to the honours of ladies. Article 51(A)(e) runs as under : "To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious. linguistic and regional or sectional diversities, to renounce practices d.rogatory to the dignity of women." 280. We would like to repeat that we should discard all such practices which are against the honour of the ladies. This has been reaffirmed by the parliamentarians by way of 42nd Amendment of the Constitution on 3.1.77 which is not only meant to be decorated only in the Almirahs of the Libraries. As we have stated above that the Indian Constitution is an alive, moving document committed to engros and announce social justice to all the citizens of India on the horizen. It is alive and not dead, it is moving and not stand-still, it is tuneful, and progressive, and a guide for future to the citizens of India. "Are we not putting a black spot on the white bright, clean and transparent progressive law, by putting Sec. i9 in this Act?" is a question arising before us. The legislature, by getting this law passed in the Assembly for uplifting the ladies wants to say not only in India but to the World at large that in India people do not do any oppression or injustice to the ladies people in India worship ladies, treat her as God, they not only declare "Mother is God" but adopts it practically in life, People of India are determined to stop such bad - practices where they are found Are we not trying to make back door entry in the 17th Century before entering into 21st Century?, is one of the questions out of many important questions. It may be called a Billion Dollar Question. The answer is clear If the Constitution of India makes a living. It may be called a Billion Dollar Question. The answer is clear If the Constitution of India makes a living. moving and progressive effort to protect the ladies for their deliverance, to give them honour, to check oppression on them and to establish equality for all, such efforts (as in Section 19) may, may be through back door entry, or on technical grounds or in disguised shape or may come with any mask over the face it is not only the right but the duty also of the legislature and the Judiciary to declare them unconstitutional, to impart social justice and keep the Constitution ever-moving after taking oath under the Constitution.281. The question is whether we should be afraid of the idea that in case Section 19 does not remain in the Act there shall be misuse of the Act or the Officers shall misuse their power by stopping or trying to stop the worship in the existing temples and memorials and so bad will be the consequences that in shall create a storm and upset in the Society. This question may be significant for the Legislature, but for the judiciary and the judges bound by constitutional oath, this question that it will upset the society or there will be misuse of it by some one at some place is absolutely insignificant.282. We have made it clear above while explaining the meaning of Sati that if the bare word of Sati is taken to be an offence or an attitude of offence then it shall amount to mental bankruptcy. We have made it clear that with reference to India. Mother Sita is worshipped and prayed in every house daily. Where such Satis are being respected for ever, we confine the meaning of the word as offence only to the extent of widow-burning. As such, simply being a Sati temple or Sati worship or praise is neither an offence in the Act nor it shall be an offence at any time. This we want to make clear. It is true, that after this clarification, the object with which the law is made is also clear, that the society does not permit widow burning or to kill a widow by burning or self- burning. We have made it clear above that an individual is low in comparison to the masses. A person is insignificant in comparison to society. It is true, that after this clarification, the object with which the law is made is also clear, that the society does not permit widow burning or to kill a widow by burning or self- burning. We have made it clear above that an individual is low in comparison to the masses. A person is insignificant in comparison to society. In the age of Social justice, and in the preamble of the Constitution and in the first object of the Constitution, our parliamentarians and the scholars who made the Constitution have made it clear that the object of the Constitution adoped for the crores of people of India, is to constitute India into a sovereign socialist secular democratic Republic to secure to all its Citizens. Justice. Social economic and political; Liberty of thought, expression, belief. faith and worship; Equality of status and opportunity and to promote among them all Faternity, assuring the dig City of individual and the unity and integrity of the Nation.283. For the above purpose we have accepted the Constitution with firm determination. It is clear that after announcement of Social Justice, Legislature, Executive or Judiciary can never permit social injustice. Social oppression, social discrimination and social exploitation in any form. We have clearly mentioned above that unfortunately even after the formation of our Constitution, for the ladies wo could not have that type of social consciousness or social set-up or social awakening which ought to have been We have pointed out clearly by various illustrations. We have shown even to this extent that not only the executive or the legislature, but the great poets and philosophers who had the responsibility of giving ideals of social consciousness for the future on the horizon of literary world, have depicted the woman only as a creature for pity instead of giving her courage and domination. National poet Maithilisharan has said: HINDI MATTER 374881I It is clear that so far, neither the Literary World, nor the Legislature nor the Executive nor the Social Reformers have made efforts to carry out the Directives of the Constitution. In the case of Ashok v. State of Rajasthan. 1980 Cr. L.R. 154 . when the matter came for consideration of the bail application before the Rajasthan High Court pertaining to demand of dowery. In the case of Ashok v. State of Rajasthan. 1980 Cr. L.R. 154 . when the matter came for consideration of the bail application before the Rajasthan High Court pertaining to demand of dowery. she wrote in her last letter addressing to the entire female world "Oh God, I pray, may not produce in future a girl of such a submissive nature that cannot fight for tier rights". The dowery was demanded on the ground that the bribe of Rs. Twenty five thousand given for getting the boy passed in the examination of Tehsildar shall be realised from the girl side and T. v. and Fridge is a must. When she did not die inspite of her three attempts by eating the rat-killing medicine feeling that even the death is not merciful to her wrote the letter in her last attempt to suicide. Not only one but thousands of such instances of the ill condition, weakness, lowness, and helplessness of the woman and exploitation by men are there Not only News-papers but the files of judicial record are lying tainted with tears. This is the reason, that the petitioners have stated in their petitions that, why the legislature while framing such a drastic law in matter of Sati has not considered about any such law in matters of dowery death ? Undoubtedly, such questions signalling for making the attitude of the legislature more stern in the matters of dowery death, raised in the writ petitions, show a sense of social awakening, sentimental ness and respect towards the ladies by the petitioners. But not framing of any drastic law in matter of dowery death does not appear to our humble opinion an argument worth reasoning that the practice of Sati or its glorification also may not be stopped. As we have said above that many amendments have been brought in the Parliament to prevent dowery-deaths also. The judiciary in India, specially Justice Shri Thakkar and Sen of the Supreme Court have written at many times that in such scornful misdeeds and gruesome offences where the ladies are burnt for dowery after sprinkling oil, death sentence is proper. Even in this Court in the case of Lichami Devi v. State. 1986 RLR 83 , an attempt has been made to award dreadful and grave punishment with a view to create terror in the Society for preventing the flood of dowery death cases. Even in this Court in the case of Lichami Devi v. State. 1986 RLR 83 , an attempt has been made to award dreadful and grave punishment with a view to create terror in the Society for preventing the flood of dowery death cases. It was written that since the flood of dowery death is increasing in the Society, Lichama Devi who has committed murder of her daughter-in-law should be awarded death sentence openly and in view of the general public provided the Jail Manual permits and the State Government can do so, It is a different matter that the Supreme Court considering the important provisions of Article 20 and 21 did not approve open hanging as Constitutional. We only mean that judiciary and the legislature both are worried for dowery-deaths also, and when ever a question arises regarding change, amendment or interpretation of law, they are vigilent and sentimental. They arc determine to the effect that wherever there are atrocities and oppressions on the ladies, and where the ladies are exploited, the judiciary, executive and the legislature, all joining hands with one view should try to protect from them.285. So we are of the opinion, that where the legislature had tried to protect the women from exploitation and death either under duress or voluntary by burning alive, at one side, has on the other side provided limited liberty to glorify such deeds, by the secret and backdoor entry through Section 19. Not only constitutional inconsistency has been created by permitting such deed in the temples or construction raised before 1.10.87 but as has been argued by Shri Surana and Shrimati Hingorani, vicious effort of giving protection to the offenders and the receding four paces after going one pace has been done, and as a watchful guard of the Constitution it is the dray of the Judiciary to struck it. Therefore, we struck down section 19. It is our clear view.286. It is the duty of the judiciary to cross on the constitutional level. howsoever, thorny, stiff and full of dilemma, the way may be. When the social change replaces social statusquo position, it is in confirmity with the constitutional requirement. At that time affection for any individual or specific social institution cannot create any obstacle in our way. It is the duty of the judiciary to cross on the constitutional level. howsoever, thorny, stiff and full of dilemma, the way may be. When the social change replaces social statusquo position, it is in confirmity with the constitutional requirement. At that time affection for any individual or specific social institution cannot create any obstacle in our way. We cannot permit humanitarian objects of the Ordinance to be suffocated due to the provision of restrosgressive Section 19 added as explanatory clause, due to ignorance and blind faith. We are completely in agreement with the feelings of Shri Surana and Shrimati Hingorani, that Section 19 being inconsistent to the honour of an individual re., pect to the woman, lofty ideals of liberty of life and body, objects of Sati Prohibition Act and the Constitution and also Articles 13, 14, 21 and 25 of the Indian Constitution deserves to be declared as unconstitutional, with reference to the above ideas As such we declare Section 19 of this Ordinance and of the Act as unconstitutional.287. Section 19 is otherwise also against Article 14 of the Constitution, as to permit glorification within the temple premises and prohibit it outside is discriminative and so unconstitutional.288. We agree with the argument of Shri Khan, that declaring Section 11) as unconstitutional does not affect the other sections of the Act. On account of this section the Ordinance and the Act do not die but can remain alive. because it is neither heart nor mind of the Act, the extraction of which may cause death or render it expressionless. It can be separated. According to the constitutional practice. the section which can be separated, its seperation and declaration as unconstitutional should not harm or affect the entire Act in any way.289. It is also necessary to make it clear that this Act is a penal law. It cannot be used for purposes of demolishing, breaking or closing the old Sati Temples. It cannot be retrospective. This is also clear with it that bare word Sati is ordinarily not an offence, nor a Sati temple or Sati spirit. Only widow burning is an offence and only to that extent glorification shall be forbidden.290. Now we shall give our decision on the argument advanced by Shri Surana with respect to Sec. I (3) of the Act. This ordinance came into force after getting assent of the President on 26.11.87.291. Only widow burning is an offence and only to that extent glorification shall be forbidden.290. Now we shall give our decision on the argument advanced by Shri Surana with respect to Sec. I (3) of the Act. This ordinance came into force after getting assent of the President on 26.11.87.291. This sub-Sec. of the Act is as under: "It shall be deemed to have come into force on 1.10.87." 292. Shri Surana argues that it is a penal law and in any penal law, any offence committed in the past or any act of the pas, cannot be given the name of an offence. In support of it he has produced the judgment Shiv Bahadur v. State of Vindhya Pradesh, AIR 1953 SC 394 . It has been expressed in the judgment that in penal laws, old acts cannot be declared offence, The significant lines of para 10 of the judgment are worth reproduction: "This, however, would be to import a some-what technical meaning into the phrase "law in force" as used in Article 20. "Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought into force but the law factually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of Article 2) would be completely defeated in its application even to 'expost facto' laws passed after the Constitution. Every such 'expost facto' law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at the time of the commencement of the Act. It is obvious that such a construction which nullify Article 20 cannot possibly be adopted. It cannot, therefore, be doubted that the phrase "law in force" as used in Article 20 mu.t be understood in its natural sense as being the law in fact in existence and in operation at the time of commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws." 293. This has been reiterated and accepted by the Supreme Court in G. P. Nair v. Delhi Administration, AIR 1979 SC 602 .294. This has been reiterated and accepted by the Supreme Court in G. P. Nair v. Delhi Administration, AIR 1979 SC 602 .294. As Shri Satish Agrawal has expressed his views before us regarding the argument of Shri Surana, that the Act which was not an offence in the past, it cannot he made an offence by making new law, because it is against Article 20 of the Constitution.295. Clause (1) of Art, 20 is as under: "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence.. " 296. Our attention has been invited, specially towards pages 606 and 607 of the judgment of G. P. Nair v. Delhi Administration , wherein the elaborate arguments are advanced in this connection On the other hand Shri Khan the Additional Advocate General has advanced arguments in support of his contention that Act is deemed to have come into force from 1.10,87 because on that day the Ordinance was promulgated containing the same sections. Shri Surana has read over both of them and has pointed out that there are differences in 5 or 6 sections. At some places the difference is important. Shrt Khan in support of his arguments has cited instances of Ravan Madhavan v. State of Bombay AIR 1951 SC 128 , Shri S. D. Swami v. State, AIR 1960 SC 7 . Arjan Singh v. State of Punjab, AIR 1970 SC 703 , and Bhuvneshwar Prasad v. State of Orissa. AIR 1963 Orr. 154 , wherein it has been said that such a law generally may be prospective; but if the legislaure so wishes and specifically says so, then in special circumstances it can be made applicable retrospectively.We are of the view that there is no necessity to stress and consider over this topic. 7 he reason is clear Not even a single instance of challan of offence under the Act or any challenge has come before us either by the Writ Petition or by Habeas Corpus petitions or Petitions under Section 482 Cr.P.C. that may have any different effect on its validity.297. The distinction pointed out by Shri Surana is also, in our view, mostly of words. Because in most of the sections the same offence has been recalled as an offence on account of sentiments. The distinction pointed out by Shri Surana is also, in our view, mostly of words. Because in most of the sections the same offence has been recalled as an offence on account of sentiments. Taking as a whole the main object of the Act, regarding prohibition of glorification of Sati, and to declare it an offence or to prevent Sati within the definition of Sati is concerned, no such contradictory definition I as been given that may be called against the intention. As such we are of the opinion that only for purposes of the legal angle there is no necessity to discuss it more. We simply want to say that all those petitions which are before us are not affected by making it applicable from 1.10.87, nor any citizen or any petitioner is put to any injury. So we shall like to decide this question in the petition where some material effect is found on account of it, here we leave it open and undecided.298. Now we shall consider some other aspects as well. Unfortunately, in some petitions, it has been specifically pleaded that the Ordinance and the Act has been brought on account of malice against a particular community. Though from the jurisdiction of Judiciary, we want to make it clear that no question of malice or ill-will against any religion, community or society arises as far as the Judiciary is concerned. We have made it clear above that in some ages in the past such practices were in existence and were really treated Honourable and we have given the instance of Johar in Chittore, by which the Head of India stands glorified before ti.e entire World.ORDERS ON HABEAS CORPUS PETITION AND APPLICATION UNDER SECTION 482 OF THE CRIMINAL PROCEDURE CODE.299. The facts as stated in Habeas Corpus petitions are : Shri Onkar Singh, Shri Ram Singh, Sri Pratip Singh Shri Anand ihirmi, Shri Indra Kumar Shri Narendra Singh and Shri Laxmi Narayan Lotterywala addressed from the i entral Jail, Jaipur to the Chief Justice of this court which were received on 2.1.8/ and treating them as writ petitions. the Chief Justice ordered that they be put up before the Division Bench for admission. Thereupon. this petition was put up for admission on the 4th day of December. 1957. the Chief Justice ordered that they be put up before the Division Bench for admission. Thereupon. this petition was put up for admission on the 4th day of December. 1957. Appearing for the State the learned Advocate General of the State took notice of the petition on that date and thereafter this petition was fixed for 9th December, 87 for admission. It has been mentioned in the petition that the petitioners have been detained under the provisions of Rajasthan Sati (Prevention) Ordinance, 87 but the detention is unauthorised. void and illegal. It has also been mentioned therein that they were produced before the Special Judge Shri Gupta who remanded them to thirteen days judicial custody. It is their submission that they have been detained without reason, without lawful authority and with malafide intentions. They have also mentioned that they have not been informed about the first information report against them. In his letter Shri Narendra Singh has mentioned that his detention has been shown to be under the provision of Section 6(3) of the Rajasthan Sati (Prevention) Ordinance. The submissions of Anand Sharma, Indra Kumar and Laxmi Narayan are almost on the similar lines. Most of the letters are dated the 1st November, 87 but Indra Kumar's letter is of the 2nd December, 1967. Another letter dated 6.1 1.87 has been sent to this court by Narayan Lai, Shri Ram Bharose Shri Moot Chand, Chaudhaiy Jatan Singh, Jaimal Singh, Risal Singh and Prem Narain and yet another letter dated the 6th December, 1987 has been presented by Shri Rajendra Singh Rathore and Shri Gopal Singh In these two letters also addressed to the Chief Justice of this court from the Central Jail, Jaipur, it has been mentioned that they have been illegally arrested and detained which is against their fundamental rights of personal liberty. Shri Narayan Lal's another letter of the 2 4th Nov. 87 has also been received. It will be appropriate to mention here that Shri Narayan Lal's name figures in the letter dated the 6th November, 87. Therefore it has been ordered to amalgamate this letter with the earlier one As mentioned earlier. all these letters have been treated as writ petitions and they have been put up before this court for admission. The State filed its reply on 12th November, 87. Same are the facts of the petitions under section 482 of the Cr. P.C.300. Therefore it has been ordered to amalgamate this letter with the earlier one As mentioned earlier. all these letters have been treated as writ petitions and they have been put up before this court for admission. The State filed its reply on 12th November, 87. Same are the facts of the petitions under section 482 of the Cr. P.C.300. In the course of arguments, the learned Addl. Advocate General made it clear that most of the detenues have been released on bail and those few still under detention can be released on bail on request. Opposing Mr. Khan's proposal regarding enlargement on bail, Mr. Onkar Singh and Shri Narendra Singh contended that their detention in prison is unconstitutional and they would like to be released unconditionally or else prefer to remain in prison. We had heard arguments on both the letters on the 13th November, 87 and reserved our judgment, it has been classified into two categories. One is related to writ petition No. 901/87 which hereinafter shall be referred to as petition by Onkar Singh & others and the other one is related to petition No. 923/87 which hereinafter shall be referred to as Narayan Lal & others. With these shall be decided live petitions under Section 482 Cr. PC.301. The facts of Onkar Singh & others are as follows : That in F.I.R. lodged with the Police Station, Mott Dungri, Jaipur at 9.30 A. M. on 8.10.87, the name of Shri Shyam Avtar Mishra, S.H.O. Police Station Moti Dungari. Jaipur is shown as informant. It has been stated therein that Dbarma Raksha Samiti had announced meeting or procession at Jaipur in support of the Deorala Sati. The District Magistrate. Jaipur issued an order on 6.10.87 under the provisions of Section 6 (2) of the Rajasthan Sati (Prevention) Ordinance, 1987 prohibiting the glorification of the commission of Sati in any manner. Despite prohibitory orders, the organisers of the Dharam Raksha Samiti took out a 1 rocession in the nerve centers of the city in which the prohibitory orders were violated by such slogans as "Ik do teen char, Sati Roop Kanwar ki jai jai kar", "Jab tak suraj chand rahega, Rup Kanwar tera name rebega" "Sate mata Roop Kanwar ki jai ho. "The procession culminated in a rally at Ram Lila grounds where the commission of Sati by Roop Kanwar was glorified by displaying a huge protrait to Roop Kanwar committing Sati. In view of this, the act of speakers is a violation of the District Magistrate's orders under Section 6 of the Rajasthan Sati (Prevention) Ordinance, 1987, punishable under Section 6 (3) of the Act. The report indicates that the F. 1. R. was lodged on 8.11.87 at 9.30 P. M. The report mentions that the F. I. R. was received by post. Statements of numerous persons have been recorded during the course of investigation of this report.302. It will be relevant and proper to state here that the first statement under Section 161 Cr. P.C. was recorded three weeks after the F. I. R. had he lodged. The F.I.R. was lodged on 8th December and the statement of thallli witness Shyama Avtar was recorded on 29.10.87. It will be relevant to mention here that Shyam Avtar Mishra is the person who had filed a F.I.R. and on whose letter the F.I.R was chalked. it will be in the fitness of things to mention here that the names of the accused figure in this first statement under Section 161 Cr.P.C. for the first time & the names of the accused found no mention in any proceding record.303. Thus, the investigation started after three weeks. Some statements were recorded on 29.10 87. The notables among those whose statements were recorded are Shri Shyam Aviar Mishra, Rain Niwas Yadav, AAA Kumar Sharma and Satish Kumar Sharma, Onkar Singh, Pratap Singh. Anand Sharma, Indra Kumar, Laxmi Narain and Narendra Singh were apprehended on 31.10.87. Satish Kumar's statement was recorded on 1.1 1.87 and Ram Singh Manohar was arrested the same aay. A charge sheet against Narendra Singh, Onkar Singh, Anand Sharma. Pratap Singh. Indra Kumar, Ram Singh Rajendra Singh ttathore and Bhagirath Singh was filed on /.11.87. It relates to case number 2/u187. The charge sheet indicates offence under Sections 5 and 6 (3) of the said Ordinance.304. So far as the case of Narain Singh & others is concerned its F. I. R. was received on 28 10.87 on the basis of which case No. 451/87 was registered with the Manak Chowk Police Station. Shri Shyam Lai Sharma, Dy.S.P., Manak Chowk is shown to be the informant. So far as the case of Narain Singh & others is concerned its F. I. R. was received on 28 10.87 on the basis of which case No. 451/87 was registered with the Manak Chowk Police Station. Shri Shyam Lai Sharma, Dy.S.P., Manak Chowk is shown to be the informant. The facts of this case are :305. A procession held by the Yuva Dharma Samiti on 28.10.87 was led by Bhagirath Singh, Pratap Singh, Anand Sharma, Gopal Singh and Laxmi Narayan who were seated is a jeep. The procession consisting of one thousand to fifteen undred people shouted slogans such as ' Ek do teen char, Sati Roop Kanwar ki jai jai kar", "Jab tak suraj chand rahega, Roop Kan var tara nam rahega," Sati mata kaisee ho, Roop Kanwar jiisee ho.", "Desk Dharam ka nata hai Sati hamari mata hai." and thereby gloried Sati violating the District Magitrate order under the provisions of Section 6 (2) of Rajasthan Sati (Prevention) Ordinance, 87 on 6.10. 87.306. Investigation started after the F.I.R. had been registered and Narain Singh, Ram Bharose, Mool Chand Chaudhary, Jatan Singh, Prern Narain, Jaimal Singh, Hath Singh, Rish3l Singh were arrested on 5.11.87. A charge sheet showing the commission of offences under Sections 5 and 6 (3) of the said Ordinance was filed on 7.11.87. We may mention here that the earlier case No. 270/87 against Onkar Singh & others was registered on 8.10.87 and the case of Narain Singh & others was registered on 30.10 87. In both these cases, the first statement recorded was that of Shyam Lai Mishra on 29.10.87, No effective proceedings took place till then. Before we ponder over the facts of both the cases in greater detail, it would be proper to give some thought to the notification dated 6.10.87 issued by the District Magistrate, Jaipur in exercise of the powers vested in him under section 6(2) of the violation of which has been shown to be an offence under Section 6(3). Section 6 reads as follows : "6. Power to prohibit certain acts:-(1) Where the Collector and District Magistrate is of the opinion that Sati is being or is about to be, committed in any area, he may, by order, prohibit the doing of any act towards the commission of Sati in such area or areas and for such period as may be specified in the order. Power to prohibit certain acts:-(1) Where the Collector and District Magistrate is of the opinion that Sati is being or is about to be, committed in any area, he may, by order, prohibit the doing of any act towards the commission of Sati in such area or areas and for such period as may be specified in the order. (2) The Collector and District Magistrate may also, by order, prohibit the glorification in any manner of the commission of Sati by any person in any area or areas specified in the order. (3) Whoever contravenes any order made under sub-section(1) or sub-section (2) shall, if such contravention is not punishable under any other provision of this Ordinance, be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to thirty thousand rupees." 307. The following is the notification dated 6.10.87 issued by the District Magistrate, Jaipur : "OFFICE Oh THE COLLECTOR & DISTRICT MAGISTRATE DISTRICT JAIPUR, JAIPUR No. Judl./Gr. 2/2/1377/ Dated the 6th Oct., 1987 ORDERIn exercise of powers vested in me vide Section 6(2) of the RajasthanSati (Prevention) Ordinance, 1987, 1, J. N. Gaur, Collector & District Magistrate District Jaipur, Jaipur do hereby prohibit with immediate effect, the glorification of the commission of Sati in any manner in District Jaipur, by any person or Association of persons.Office.Issued on the 6th day of October, 1987 under my hand and seal of my (J. N. Gaur) Collector & District Magistrate Jaipur" 308. The order is shown to have been issued on 6th October, 1987. A copy of the order was sent to the Secretary to the Government, the Director General of Police, the Deputy Inspector General of Police the Superintendent of Police, Jaipur, the Superintendent of Police (Rural) Jaipur, the Addl. Collector & Addl District Magistrate, Dausa, all the Sub Divisional Officers of Jaipur, Assistant Collectors and Executive Magistrates, Tehsildars, the Public Relations Officer and the Director of Public Relation. Rajasthan, Jaipur. We have mentioned this fact to show that this order did not provide for the publication of the notification in any other manner.309. Collector & Addl District Magistrate, Dausa, all the Sub Divisional Officers of Jaipur, Assistant Collectors and Executive Magistrates, Tehsildars, the Public Relations Officer and the Director of Public Relation. Rajasthan, Jaipur. We have mentioned this fact to show that this order did not provide for the publication of the notification in any other manner.309. It is on record that the Convenor, Police Atyachar Virodhi March, Rajasthan, Jaipur addressed a litter to the Collector on6.10 87 informing him that a large number of innocent persons have been arrested in connection with the Deorala Sati incident on 4th September and that despite repeated requests, the Government has neither made up its minds to release them nor held out any assurance to that effect. Therefore, a public meeting is being organised on 8.10.87. It has also been mentioned therein that some 50,00() persons from various districts of Rajasthan are expected to attend this meeting-Ram Lila grounds, Bari Chopar and Ram Niwas Garden. It this application, permission was sought so that public meeting could be organised. It was also urged that traffic arrangements and drinking water facility be provided for large number of persons coming from outside. This letter was addressed to the Collector by Shri Ram Singh Manohar, Convener. Police Atyachar Virodhi Manch, Rajasthan. The Collector sent the application to the Administrator, Municipal Council, Jaipur for necessary action.310. A letter dated 7.10.87 by the Addl. Collector and Addl. District Magistrate, Jaipur has also been produced in which the request of Shri Ramsingh Manohar, Convener, Police Atyachar Virodhi Manch to hold public meeting on Ram Lila grounds on 8.10 87 has been granted subject to following C (1) A formal permission for holding the meeting will be obtained from the Municipal Condition uncil (2) The meeting shall not violate any law or rules made from time to time The Commissioner, Municipal Council has, in its letter to Shri Ram Singh Manobar Convener, Police Atyachar Virodhi Munch granted permission to hold meeting at Ram Lila grounds on 8.10 87 at 6 p.m. in accordance with the letter of' Addl. District Magistrate, Jaipur dated 7.10 87 after depositing the rent as prescribed by rules Its information was sent to the District Magistrate, Jaipur and Addl. District Magistrate, Jaipur.311. A letter from the Public Relations Officer, Jaipur dated 4.11.87 addressed to the Dy. Superintendent of Police Jaipur City, Jaipur has been produced by the State Government. District Magistrate, Jaipur dated 7.10 87 after depositing the rent as prescribed by rules Its information was sent to the District Magistrate, Jaipur and Addl. District Magistrate, Jaipur.311. A letter from the Public Relations Officer, Jaipur dated 4.11.87 addressed to the Dy. Superintendent of Police Jaipur City, Jaipur has been produced by the State Government. It has been mentioned in the letter that the Collector's order dated 6-10-87 relating to Rajasthan Sati (Prevention) Ordinance, 1987 had been sent in the form of a press note for publication in local news papers on 7.10.87. This news was published in Rajasthan Patrika, Rastra Doot, Nav Bharat Times, Nav Jyoti and some other news papers on 7.10.87. In addition to this, the news was broadcast by the Jaipur Station of All India Radio on 7,10.87. That the Collector's order dated 6.10,87, was broadcast by Jaipur Station of All India Radio on 7.10 87 in Hindi at 7.10 p. m. and 8.05 in Rajasthan by Smt. Ujjwala and Shri Ved Vyas respectively is stated in a letter produced on 6.1 1.87.312. In this reply filed by the State, it has been submitted that the petitioners were arrested under the provision of Section 6(3) of the Rajasthan Sati (Prevention) Ordinance and that a charge sheet in this respect has been tiled in the competent court and since the matter is subjudice in the court of competent jurisdiction, the writ petition deserves to be dismissed.313. It will be relevant to state here that neither party to the writ has submitted pleadings in a proper legal from. The letters were received from the Jail which were treated as a writ but both the parties were given an opportunity to produce any document they wanted to produce. touring the court of preliminary arguments the petitioners had urged that they had no knowledge of the notification of 6th October, 87. Therefore, the Govt. was directed to produce any documen's in this respect which it considered fit. In his affidavit tiled by Shri Dinesh Sharma, Addl. Superintendent of Police who is said to be the officer incharge of this case it has been mentioned that the Collector's notification of 6 10.87 under section 6(2) had been published by media including radio. Clippings of various news papers have been filed alongwith the affidavit. In his affidavit tiled by Shri Dinesh Sharma, Addl. Superintendent of Police who is said to be the officer incharge of this case it has been mentioned that the Collector's notification of 6 10.87 under section 6(2) had been published by media including radio. Clippings of various news papers have been filed alongwith the affidavit. It has been further mentioned in the affidavit that the news regarding Collector's notification had been broadcast by All India Radio on 7th October, 1987 in the Hindi news bulletin at 10 p.m. and in Rajastbani news bulletin at 8.05 p.m. and again at 9.05 a. m. on 8.10 Si.314. Before that Special Court set up under the provisions of Rajasthan Sati (Prevention) Ordinance. 1997 an application was moved by tht petitioners. Its copy together with an affidavit and a copy of the FIR has been produced. The petitioners have mentioned in the copy of the application that at the instance of the Chief Minister, their leaders Shri Kalyan Singh Kalvi, Narendra Singh Rajawat etc. had met the Chief Minister Hari Deo Joshi and the Home Minister, Shri Gulab Singh Shaktawat in the Fteem_e of the Vice-Chairman of the Rajya Sabha Smt Pratihha Patil and obtained his permission to hold the meeting. The Chief Minister had sought only on assurance that arms would not be taken in the procession or rally and there mould be no riots, looting or beating. The leaders not only gave this assurance but saw to it that it was complied with as is well known has been mentioned therein that when their leaders again called on the Chief Minister at his Ajmer Road residence on the 11th October 1987 and requested him for the expeditious release of the innocent persons arrested in Deorala, the Chief Minister said not a word against the alleged violation of the prohibitory orders but on the contrary applauded the leaders for peaceful and disciplined meeting and demonstration. Thereafter their leaders met the Chief Minister in Deorala on 20tb & 21st October when the State Congress Committee Chi,:f Shri Ashok Gahlot was also present. There the Chief Minister announced the release of 24 persons of Deorala. After the public meeting and demonstration on 8th O.tober and on the Chief Minister's return from Delhi and at his instance, their leaders Raghuveer Singh, Kalyan Singh Kalvi. Thakur Onkar Singh, Narendra Singh etc. met him. There the Chief Minister announced the release of 24 persons of Deorala. After the public meeting and demonstration on 8th O.tober and on the Chief Minister's return from Delhi and at his instance, their leaders Raghuveer Singh, Kalyan Singh Kalvi. Thakur Onkar Singh, Narendra Singh etc. met him. The Chief Minister himself said at the meeting that no other prohibitory order under the Ordinance was passed except one by the Collector, Jaipur against the carrying of arms. There was no mention of any notification as such. The signatories to this application are Onkar Singh, Narendra Singh Rajawat, Ram oingh Manohar, Indra Kumar Tiwari, Pratap Singh, Bnand Sharma, Laxmi Narayan, Rajendra Singh Rathore and Bhopal Singh Rathore. In this application dated the 4th November, 1987, it has also been mentioned that they neither saw nor heard of any notification issued by the Collector under the provisions of Section 6 1) or 6(2) of the Rajasthan Sati (Prevention) Ordinanc&. If any such prohibitory order was issued, it would have been duly & timely published. The facts mentioned in the application have been supported by Pratap Singh in his affidavit.315. Besides challenging the detention the learned counsel have challenged the validity of the Sati (Prevention) Ordinance. So far the validity is concerned, we have considered it separately and so far the question of the detention being illegal and unauthorised is concerned, the petitioners advanced the following arguments : (1) The petitioners have been detained without any lawful authority which is violative of their fundamental rights of personal liberty. (2) There was no proper publication and publicity of the District Magistrate's order dated 6th October, 87 If it was at all issued, its publication was not sufficient The petitioners were not in any manner made aware of it. They had no notice or knowledge of the notification of the 6th October, 1987 either before or when the meeting were held on 8th and 8th October. 87. The. meeting started on 8th October, 87 around 8 o'clock and the procession started at 11 o'clock. (3) It has been made clear in the Rajasthan Sati (Prevention) Ordinance that there is a freedom to glorify Sati if Sati has been committed or temple has been constructed prior to 1.10 87. Thus, if according to Section 19, the petitioners have in any manner glorified Sati, they have committed no offence and they had every right to do so. Thus, if according to Section 19, the petitioners have in any manner glorified Sati, they have committed no offence and they had every right to do so. (4) The petitioners have committed no offence under Section 6(3) or Section 3 of the Rajasthan Sati (Prevention) Ordinance, 1987. (5) There is no mention in the alleged order of the District Magistrate dated 6.10 87 or in the provisions of the Sati (Prevention) Ordinance, 1987 that no glorification be done through speeches. What was prohibited was only glorification of the incidence of Sati in any manner. It has been argued that even in the definition of the term glorification of Sati there is no restriction on any speech. (6) The entire act of the Government is unfortunate and illegal. 316. As against this, the learned Addl. Advocate G: neral and other learned advocates have advanced the following contentions : (1) Since a charge sheet has been laid down against the petitioners for offence falling within the mischief of Rajasthan Sati (Prevention) Ordinance in the court of competent jurisdiction and since the detention is under the provisions of that ordinance, the contention of the petitioners that their detention is illegal and unauthorised is in no way sustainable and their petition should be dismissed. (2) That the petitioners cannot challenge the validity of the Ordinance in Habeas Corpus Petition. (3) That the District Magistrate's order under section 6(2) was duly published and publicised and all possible modes of publication including broadcast through radio & news in the news papers, were used. (4) That on no grounds does the question of the malafides on the part of State Government arise nor have any particulars of malafides been given. 317. We have given a serious thought to the contention of both the pardts. We shall now consider the questions raised in this petition. We have to see whether the Collector and District Magistrate's notification under section 6(2) of the Rajasthan Sati (Prevention) Ordinance, 1997 was duly published and whether on the basis of material evidence and facts available on the record, it could be decisively held that its publication was proper and in accordance with law. We have to see whether the Collector and District Magistrate's notification under section 6(2) of the Rajasthan Sati (Prevention) Ordinance, 1997 was duly published and whether on the basis of material evidence and facts available on the record, it could be decisively held that its publication was proper and in accordance with law. Before we consider it, we shall consider some other relevant facts having a bearing on the decision of these petitions, As stated earlier, the stand-point of the petition as advocated by their counsel is that their arrests were made under section 6(3) of Sati (Prevention) Ordinance, 1987 and this fact is borne out by the FIR and the arrest memos Although it is the contention of the State Govt. that the petitioners were arrested under the provisions of section 5 and 6(3), the facts are that Onkar Singh, Anand Sharma Narendra Singh, Pratap Singh, Indra Kumar, Ram Singh are shown to have been arrested under the provisions of sections 6(3) but in Rajendra Singh Rathor's arrest memo section 5 has been separately added to section 6(2) later on. The same is true in case of Bhagirath Singh. Learned Addl. Advocate General produced for our perusal the case diary as directed by us. These facts emerge from the perusal of the arrest memos of Rajendra Singh Rathor and Bhagirath Singh. As regards the arrest of Bhagirath Singh. Laxmi Narain Lotterywala, Anand Sharma and Pratap Singh in case No. 451/87, their arrests have also been shown under section 6(3) but Gopal Singh Rathor's arrest is shown under Section 5 and 6(3). As we have stated earlier, in cases Nos. 270/87 and 451 /87 the arrests have been shown under section 6(3) and in papers for remand submitted from time to time also the arrests are shown to have been under section 6(3). Even in its reply to these writ petitions, the State Government has shown the offence under section 6(3). We have perused the police Diary also. It appears from the perusal of the police diary that at a much later stage it has been shown that the case falls within the mischief of section 5 also. This makes it clear that the case originated in the womb of Section 6(3) and investigations started accordingly but later at the time of submitting the charge-sheet section 5 was added. This makes it clear that the case originated in the womb of Section 6(3) and investigations started accordingly but later at the time of submitting the charge-sheet section 5 was added. F.I.R. constitutes the basis of any case or offence & the case proceeds on that basis.318. It is also well recognised principle that if the prosecution case or evidence is contrary to the F.I.R., it is viewed with suspicion. The prosecution's right to make changes or additions is , ery limited and when the prosecution goes beyond that limit, doubt creeps in the benefit of which the accused is always entitled The perusal of all the three FIRS produced leads to only one conclusion that the prosecution case is related and confined to offence punishable under section 6(3). Implied in the Collector and District Magistrate's order of 6.10.87 was a hint that an act of glorification of sati by any person or group or institution was prohibited and one who violates it will be liable to punishment which may extend to seven years and fine upto Rs. 30000/ 319. If we examine section 6 and 5 of the said Ordinance, it will be clear that section 5 provides for punishment for act of glorification of sati and Section 6 empowers th.e Collector to issue orders prohibiting some acts of glorification of sati and in exercise of the powers vested in the Collector, he can get such orders published and if such order is voilated, it will be an offence punishable under section 6(3). But it has been made clear the it if the violation by any person of any order under sub-sec.(I)or sub-sec.(2) is not punishable under any provision of the Ordinance, he will be liable to punishment under sub-sec. (3)320. The present case clearly relates to violation of notification under section 6(:) and obviously its violation falls within the purview of sub-section 3 It will be relevant to observe here that though both the sections deal with the glorification of sati, under section 5 any act of glorification is prohibited under section 6, glorification in any manner of the commission of Sati has been taken care of by sub-section (2) the violation of which is punishable under section 6(3). In the instant case, the facts as contained in the FIR, are concerned with the violation of the prohibitory order regarding glorification of the commission of sati in any manner & oot the act of glorification for sati.321. Now we come to the prinicipal point concerning Habeas Corpus petitions In Habeas Corpus petitions, the main point of consideration is whether or not the detention is lawful.322. The point for consideration in this respect is with reference to which date the validity of the order is to be judged, Ordinarily the court has to consider whether the detention on the date of the presentation of writ petitions is just and in accordance with law.323. In Kanu Sanyal v. District Magistrate, AIR 1974 SC 510 , while considering habeas corpus writ petitions, the Supreme Court has observed that in habeas corpus writ petitions, the relevant date for considering the validity of detention is the date of the presentation of writ petition. If detention is valid on that date, the petition will be dismissed and if the detention is illegal the petitioner will be set free. In some judgments, the Supreme Court has held that the date of hearing of writ petitions is also relevant in this respect but this position will arise when the facts undergo change in between the date of petition and the date of hearing. If the order of detention is defective and the defect is cured by the date of the hearing, the court can consider these circumstances on the point of detention. So far as this case is concerned, it has alm)st been in undisputed position that both the parties believed that detention is in respect of offence punishable under Section 6(3) and the writ petitions by Onkar Singh & others were presented before this Court on 2.1 1.87 which were registered on 3rd & fixed for admission on 4th Nov. 87.324. Other petitions of Narayan Singh & others were presented on 6.10.87 and they were treated as writ petitions and charge sheets in both the cases were laid down before the court of competent jurisdiction on 7.1 1.87. The stand-point of the State is that at the time of presenting charge-sheets, position was clear that the charge sheets were presented on the presumption that offences under section 5 and 6 (3) were committed. The stand-point of the State is that at the time of presenting charge-sheets, position was clear that the charge sheets were presented on the presumption that offences under section 5 and 6 (3) were committed. The learned Addl Advocate General's further submission is that the police have powers to charge, and or amend the charge sheet on the basis of the offences made out when the charge sheet is presented.325. We shall now turn our attention to a point of great significance having many serious dimensions. The question is : Whether the Collector & District Magistrate's prohibitory order in exercise of the powers vested in him under Section 6(2) of the Rajasthan Sati (Prevention) Ordinance 1987 was duly, legally & adequately published. This point assumes greater importance and gravity because the violation of this order is punishable with sentence we would therefore, consider this with all seriousness and judicial discretion.326. Any question concerning publication of any order or law or any rule made under the law or any notification or order, the violation of which is a penal offence, has to be viewed in the same way. As far the question of its comming into operation is concerned. whenever any Act or Ordinance is brought, it is shown in that Act or Ordinance itself whether it would come into operation with immediate effect or from the date of publication in official gazette ear from some other specified date. As a rule, it is well-recognised legal principle as enunciated in Section 5 of the Rajasthan General Clauses Act that where any law enacted by the Rajasthan Assembly is not expressed to come into operation on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the Rajasthan Gazette.327. Thus there is a provision in Rajasthan General Clauses Act that any enactment is deemed to have come into operation from the date of publication in, the official gazette.328. Section 25 of the Rajasthan General Clauses Act, 1955 also contains the provision that where, in any Rajasthan law or in any rule, regulation or bye law made thereunder, it is directed that any rule, regulation. Section 25 of the Rajasthan General Clauses Act, 1955 also contains the provision that where, in any Rajasthan law or in any rule, regulation or bye law made thereunder, it is directed that any rule, regulation. bye-law, notification, order, scheme, form or other matter shall be notified or published, then such notification or publication shall, unless such law, rule, regulation or bye-law provides be deemed to be duly made if it is published in Rajasthan Gazette.329. It is an undisputed fact in this case that the order dated 6.10.87 was not published in the official gazette nor was its publication in the official gazette necessary and so the presumption under Rajasthan General Clauses .Net does not arise. Now the question is : when there is no publication in the official gazette how and under what circumstances should that order he deemed to have been effective, We shall like to refer to a Supreme Court judgment in this respect. That case is Harla v. State of Rajasthan AIR 1981 SC 457 ; in which the Hon'ble Supreme Court has observed thus : "In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable deligence have acquired any knowledge. Natural justice required that before a law can become operative it must be promulgated or publihsed. It must be broadcast; in some recongnisive way so that all men may know that it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives. liberty and property by the mere passing of a resolution without .Anything more is abhorrent to civilised man. It shocks his conscience In the absence therefore of any law, rule regulation or custom. we hold that a law cannot come into being in this way. liberty and property by the mere passing of a resolution without .Anything more is abhorrent to civilised man. It shocks his conscience In the absence therefore of any law, rule regulation or custom. we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." 330. The Supreme Court has recognised the above principles in many other cases In the above Harla case, the Supreme Court has referred to the decision Johnson v. Sargent (1418) (1) K.B. 101 , it has been held in this case that any order will be deemed to have become operative when it has been published and public by any accepted or recognised mode. The main question in Harla v. State of Rajrsthan sprang from the fact that the Council of Ministers had passed a resolution containing a penal provision and many people were sentenced under that law. The point raised before the Supreme Court was that the order was not legally published, In that context the Supreme Court expressed its above views. The Supreme Court has cited with approval case of Johnson in State of Maharashtra v. Mayor Hans George, AIR 1965 SC 722 , also. In State of Maharashtra v. Major Hans George , the Supreme Court expressed the view that the best mode of publication is the publication in gazette.331. We would like to refer to decision of Andhra Pradesh in this regard. The case is R. Narain Reddy v. The State of Andhra Pradesh 1969 Andhra W.N 77 . Learned Justice Chinappa Reddy delivered this judgment. His Lordship observed thus : "Subordinate legislation to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgattion is prescribed by the parent statute or not. It will take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed but where the statue is silent the question arises what is the mode of publication or promulgation to be adopted. The subordinate legislation itself may prescribe the manner of publication, in which case such mode of adopted. may be sufficient, if reasonable. I am guarded,y adding the words if reasonable' because it is not easy to visualise cases where the mode of publication prescribed by subordinate legislation may be wholly unsuitable. The subordinate legislation itself may prescribe the manner of publication, in which case such mode of adopted. may be sufficient, if reasonable. I am guarded,y adding the words if reasonable' because it is not easy to visualise cases where the mode of publication prescribed by subordinate legislation may be wholly unsuitable. If affixture on the notice board of be Central Secretariat of rules under enactments or as the mode of publication it can never be said to be satisfactory or reasonable mode of publication. If the subordinate legislation does not prescribe a mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published, through the channel, now customarily recognised in our country as the appropriate channel through which official orders are made known to the public, namely, the Official Gazette. In my view, subordinate legislation of a general nature takes effect on the date when it is published in the official Gazette, except where statute provides otherwise or where the subordinate legislation itself provides a different but reasonable mode of publication." 332. In this judgment of Andhra Pradesh High Court this principle has been laid down that the principles applicable for the publication of any act also apply to the publication of any Notification or Order and if the made of publication and prorogation of any order is not provided in the Act or Rules made thereunder, the mode of publishing and publicising it should ordinarilly be the same as meant for the publishing and publicising of the Act.333. In this judgment it was also pointed out that if the Government frames any law of rules, the mere pasting of the law or the rules on the notice board of the Secretariat will not be proper publication.334. In Yaduraj Singh v. State of Rajasthan (S. B. Civil Writ Petition No. 638/1986) and other related writ petitions decided on 11th December, 1987 this court rules that so far as the publication of any order or notification is concerned, it is essential that it should be made known to the general public and generally the well known mode is the publication of those orders in the official Gazette. In Yaduraj Singh the notification was publised in official gazette and the date of publication was printed In fact. In Yaduraj Singh the notification was publised in official gazette and the date of publication was printed In fact. the gazette was not published on that date but much later and though the Court did not dispute that the act done by public official should be deemed proper yet in view of the facts as emerged in that case the Court held that the date printed in the gazette was different as the gazette was not published on that date but afterwards and in these circumstances, the Court did not hold its publication as proper.335. Having dealt on the principles concerning publication, we shall now turn to the facts of the instant case In the Rajasthan San (Prevention) Ordinance, 1987, there is no provision for the manner of publication of order under Sec 6. nor any rules have been framed thereunder, as yet providing for mode of publication. The facts as to the publication of the notification (Order) are that the Collector and District Magistrate, Jai Narain Gaur issued orders under the provision of the Rajasthan Sati (Prevention) Ordinance, 1987. This order was issued on 6.10 87. This fact has been stated in chat order itself and there is no reason to disbelieve it. But no cause has been shown on behalf of the State as to why such or important order and that too in the special and material circumstances mentioned, more than once in the facts of the writ petitions, was not published for the information of the general public on 6.10.87 itself.336. The petitioners have raised an objection that there was no publication of the order on the 6th and it has not been averred on behalf of the State that it was published on the 6th itself The facts that have come to light indicate that the District Public Relation Officer had, for information of the general public, sent a press note on 7.10.87 for publication in Local News Papers. According to the affidavit of Shri Dinesh Sharma, Addl. S. P. Jaipur, it was published in Rajasthan Patrika, Rashtradoot, Nay Bharat Times, Nav Jyoti and some other news papers on 8.10 87. It has also come to light that the Jaipur Station of All India Radio had broadcast news to this effect at 7.10 on 7.10.87. According to the affidavit of Shri Dinesh Sharma, Addl. S. P. Jaipur, it was published in Rajasthan Patrika, Rashtradoot, Nay Bharat Times, Nav Jyoti and some other news papers on 8.10 87. It has also come to light that the Jaipur Station of All India Radio had broadcast news to this effect at 7.10 on 7.10.87. It is based on a news editor Shri M. R. Singhvi's letter dated 6.10.87 addressed to the Circle Officer, Public Circle, Manak Chowk. Jaipur but as against this. Shri Dinesh Sharma, Addl. S. P. has stated in his affidavit that the news was broadcast at 10 p.m. on 7th Oct.. 1987. According to the affidavit, the Collector's order was broadcast on 8.10.87 at 9.5 A. M. in Hindi. This fact is stated to highlight that there is no material or evidence on record to show that the order in question was published on 6th. The only material available on record regarding publication in the news broadcast by Jaipur Station of All India Radio, about which also there are two versions. One version is that the news was broadcast on 7.10.87 at 7.10. Another version is that it was broadcast in Hindi on 7.10.87 in the night at 10 0' clock. No other material regarding publication is available on record. The only available material regarding publication on 8.10.87 comprises news paper clippings.337. Shri M.I. Khan, Addl. Advocate General submits that there is a mistake as to timing in the Addl. S.P., Jaipur Shrt Dinesh Sharma's affidavit. The news was in fact broadcast at 1.t0 and not 10 P.M. on 7.10.ts/, Mr. Khan explains. In support of' his submission, he has invited our attention to R. 8/1 and K. 8/2 which have been produced alongwith Shri Sharma's affidavit, in which Bhawani Prasad, P.A. to the District Magistrate has mentioned that the news was broadcast three times on 7th and 8th Oct. The time of broadcast in Hindi shown in R. 8 is 7. 10. It has been stated on behalf of the petitioners that they had no information of any such publication. They have gone to the extent of asserting that even the Chief Minister and other State functionaries had no knowledge of the notification and in support of their contention they have produced an application, as stated above signed by Onkar Singh, Narendra Singh, Ram Singh, Itidra Kumar. They have gone to the extent of asserting that even the Chief Minister and other State functionaries had no knowledge of the notification and in support of their contention they have produced an application, as stated above signed by Onkar Singh, Narendra Singh, Ram Singh, Itidra Kumar. Pratap Singh, Anand harma, Laxmi Narain, Rajendra Singh Gopal Singh. which has been supported by Sh. Pratap Singh by his affidavit. Another relevant circumstance put-forth on behalf of the petitioners is that the Convenor, Police Atyachar Virodhi Mancha Rajasthan had prior to 8, 10.87 that is on 6.10.87, informed the District Magistrate that they wanted to hold a meeting in village Deorala of District Sikar on 4th Sept., regarding Sati incident in which some 50,000 people from various districts of Rajasthan were expected to take part. At that time also the District Magistrate did not inform them that he had issued prohibitory orders under Section 6 (2) forbidding individual groups or Associations from glorifying the act of Sati and that the notification had come into operation with immediate effect. When any notification having the force of law, is published on any date, the well established principle is that its publication is deemed with the sunrise irrespective of the time at which it was issued Hut it is the contention of the petitioners that even the Collector did not give them any information in this respect and the Addl. Collector gave them permission to hold the meeting on the evening of 8th Oct. 1987 about which a mention has been made above and the Commissioner, Municipal Counsel by his order dated 7.10 8/ granted permission to hold meeting at Ram Lila Ground. It is the petitioners' contention that the State functionaries, including the Collector and District Magistrate, Jaipur had prior intimation of the meeting they (petitioners) held and none drew their attention before or at the time of the meeting that the Collector's notification under Section 6 (2) had been published banning any meeting. speech or procession.338. There is no dispute or difference of opinion between the parties as regards the permission to use Ram Lila Ground. In other words, both the parties hold that permission Has certainly given. speech or procession.338. There is no dispute or difference of opinion between the parties as regards the permission to use Ram Lila Ground. In other words, both the parties hold that permission Has certainly given. However, the learned Advocate General has invited our reference to the condition No. 2 in the Addl Collector's order in an attempt to indicate the laws and rules published from time to time would not be violated in the conduct of the meeting and the condition Indicates that the petitioners were informed that they would abide by the Collector's notification dated 6.10 87.339. If case diaries relating to investigation in case Nos. 270 and 451/87 are viewed in this context, both the cases reveal the fact that at the time of reducing the FIR in writing, the man who wrote it did not have the notification under Section 6(2) because he sent a letter to obtain it from the Collector. The Circle Officer wrote such letter to the Public Relations Officer in Case No. 451 on 4.11,87.340. Before we consider the above facts and reach the conclusion, we shall consider what jurisdiction this Court has, Whether it is limited or unlimited and if it is limited how and to what extent and if unlimited, to what extent this Court can exercise its jurisdiction.341. First of all it is to be seen whether in view of the above facts emerging from the subject matter, this Court has jurisdiction. The stand-point of the Addl Advocate General Shri M.I. Khan is that when the State has presented the charge-sheet in the case, this Court ceases to have jurisdiction to pass any orders in Habeas Corpus Petition. He has further contended that when some case under any law is presented in the form of charge-sheet its validity or procedural defect can be challenged only in that Court and therefore the Court has limited jurisdiction even under the provisions of Section 482 Cr. P. C.342. As we have stated above, two Habeas Corpus Writ Petitions are before us. The petitioners have stated that they have under the provisions of Section 482 of the Criminal Procedure Code, separately challenged their detention besides the procedure adopted by the Government in making out the case and the way they have been charged with the offence punishable under Section 6(3). The petitioners have stated that they have under the provisions of Section 482 of the Criminal Procedure Code, separately challenged their detention besides the procedure adopted by the Government in making out the case and the way they have been charged with the offence punishable under Section 6(3). The following are the petitions presented before this Court under the pro- visions of Section 482 Cr. P. C.: "1. S. B. Cr. Misc. Petition No 781/87; Rajendra Singh Rathore v. The State . "2. S. B. Cr. Misc. Petition No. 782/87; Bbagirath Singh v. State . "3. S. B. Cr. Misc. Petition No. 784/87; Bhagirath Singh v. State . "4. S. B. Cr. Misc. Petition No. 792/87; Rajendra Singh Rathore v. State . "5. S. B. Cr. Misc. Petition No. 796/87; Ram Singh Manohar v. State . 343. These are five petitions. From the perusal of these petitions it appears that two of them are presented by Bhagirath Singh and two by Rajendra Singh Rathore. In Bhag;rath Singh's petition, it has been submitted that the entire proceedings in relation to case No. 451 /87 Police Station Manak Chowk are illegal ab initio and they be declared unlawful and be quashed. In his ';ccond petition, Bbagirath Singh has prayed that the proceedings in Case No. 270/87 Police Station Moti Dungri be quashed Similarly, Rajendra Singh Rothore has, in his petition under Section 482 Cr.P.C., prayed that the entire proceedings in connection with Case No. 270/87, P. S. Moti Dungri be declared illegal and unlawful and be quashed. Petitioner Ram Singh has also made the similar request in his petition under Section 482 Cr.P.C. in respect of F.I.R. No. 270/87 registered under the provisions of Section 6 (3) of the Rajasthan Sati (Prevention) Ordinance, 1987 with the Police Station Moti Dungri on 8.10.87. He has sought his immediate release.344. Thus the prayer whether through Habeas Corpus petition or under Section 482 Cr.P.C. basically is that their detention is wrong, illegal, void and without the authority of law and cases against them being illegal deserve to be dismissed. Now regarding the question of jurisdiction, the learned Addl. Advocate General has invited our attention to Kurukshetra University v. State of Haryana, AIR 1977 SC 2229 and Joseph v. The State of Kerala, AIR 1973 SC 1 .345. Now regarding the question of jurisdiction, the learned Addl. Advocate General has invited our attention to Kurukshetra University v. State of Haryana, AIR 1977 SC 2229 and Joseph v. The State of Kerala, AIR 1973 SC 1 .345. In Kurushctra University's case the Supreme Court has opined that under Section 482 Cr.P.C. High Court has inherent powers but these powers are not to be used arbitrarily or without reasoned discretion. This statutory power should be used only it' justice demands it. It has also been opined that powers under Sec 482 Cr P.C, can even be used to quash the F.1.R. even where the police has not even started the investigation and where even there is no case under consideration in the court,346. In both of these judgments the principle laid down is that mere inherent powers should be used with utmost care and only in such situation where their exercise is essential to secure ends of usticz In (43) ,Madhulimay' s case, AIR 1977 SC 47 the Supreme Court laid down the following principles in relation to the exercise of the inherent power:- (1) That the power is not to be resorted to if there is a specific provision it, the Criminal Procedure Code for the redress of the grievance. (2) That it should be exercised very sparingly to prevent the abuse of the Court or to secure the ends of justice. (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 347. In Jehan Singh v. Delhi Administration, AIR 1974 SC 1146 , also the Supreme Court has laid down the principle that where at the date of filing the petition under section 561(a) (which was corresponding to Section 482 Criminal Procedure Code ) no charge-sheet or complaint has been laid down in Court and the matter is only at the stage of investigation by' police. the Court cannot, in exercise of its inherent jurisdiction under Sec 561-A. interfere with the statutory powers of the Police to investigate into the alleged offence, and quash the proceedings-it has been further held that even assuming that the allegations in the F.I.R. are correct and constitute an offence, so as to remove the legal bar to institute proceedings in Court, the Court cannot at that stage apprise the evidence collected by the police in their investigation. Shri S.D. Sharma, Shri Surana and Shri Agarwal have cited some rulings of the Supreme court in which the powers of the Court have been discussed. In these rulings, which we shall come to presently, powers given under Section 4S2 Cr.P.C. & Art 226 of the Constitution of India have been discussed. In R P. Koopar v. State of Punjab, AIR 1962 SL 866 . it has been observed that inhere t powers should not be taken recourse to where other provision of law exists, but the Court should not hesitate to exercise its powers if some well-recognized principles have been violated & it is very essential in the interest of justice. Even if charge sheet under Criminal Law has been laid down before the Court, the Court has powers to quash such proceedings. In Pratibba Rani v. Saraj Kumar, 1485 (2) SCC 370 , the Supreme Court has held that if clear allegations constituting the offence are made, the court should be reluctant to interfere. Implied in it is view that if no offence is made out on the basis of the available evidence in petition, the Court can exercise its inherent powers.348. Commenting on the courts power under Article 226 of the Constitution of India. the Supreme Court has observed in State of West Bengal v. Swapna Kumar, AIR 1982 SC 949 , that if no offence is made out on the basis of the facts stated in the FIR, the High Court has power under Article X26 to quash proceedings. It has also been observed that the court has powers to quash the entire investigation proceedings.349. Our attention has been invited to two judgments of this court. One is Habu v. State of Rajasthan. 1987(1) RLR 1 = 1987 RLW 64 and another is Nuratki Allias Mammu v. State of Rajasthan . The Full Bench of this Court in Habus case discussed in detail its powers under section 442 of the Criminal Procedure Code and after having considered judgments of the above cases and other cases of the Supreme Court, observed that as to the question of personal liberty is concerned and where the basic principles of justice have been infringed there is no provision in the Cr P.C forbidding the court for exercising its inherent powers. The judgment in Nurtaki case is related to the powers under section 482 of the Criminal Procedure Code. The judgment in Nurtaki case is related to the powers under section 482 of the Criminal Procedure Code. In this judgment the full Bench has observed that if detention is illegal, the court has powers to quash it. A number of rulings have been cited by both the parties. The substance of all the rulings is that the court should exercise its inherent powers with utmost discretion but if the detention is illegal or proceedings are against the provisions of the Constitution or the principles of natural justice and the exercise of powers is necessary in the interest of justice, the court should not hesitate in exercising its powers. In the ruling cited above, the Court, in exercise of its powers, quashed FIR and investigation proceedings. The Supreme. Court has also observed that if on the basis of available record no case is made out, the investigation proceedings be quashed under Article 226 of the Constitution of India. Similarly the Court while considering the Habeas Corpus Petition under Article 226 can quash detention if it is found to be unconstitutional and against law.350. Analysis thus leads us to the conclusion that the inherent powers of the court whether they be under Article 226 of Habeas Corpus, or section 482 of the Cr.P.C. can be exercised in accordance with the circumstances and sound judicial discretion with a view to doing justice. It is essential to state here that we have before us Habeas Corpus Petition and based on those facts applications under Section 482 Criminal Procedure Code and also those writ petitions challenging the validity of Rajasthan Sati (Prevention) Ordinance. Although the Habeas Corpus petitions under consideration have been received in the form of letters and those letters can he treated as other Writ Petitions also under Article 226 of the Constitution of India. The powers of this court under Article . 26 of the Constitution of India are unlimited and for doing justice they are not fettered. The court can exercise these powers in the interest of justice in any circumstances justifying the exercise of this power. The powers of this court under Article . 26 of the Constitution of India are unlimited and for doing justice they are not fettered. The court can exercise these powers in the interest of justice in any circumstances justifying the exercise of this power. After this detailed discussion we have to see how these are applicable to the instant cases before us whether they are related to writ petition or Habeas Corpus or petitions under section 482 of the C r.P C. Earlier we had given thought to the prohibitory order of the Collector Jaipur under sections 6 (2) the Rajasthan Sati (Prevention) Ordinance on 6.1t) 87 and now we are considering whether the order passed was legally published. While discussing the facts we had made it clear that no steps were taken for the publication of the order dated 6.10.87. We had also seen that whatever steps were taken in regard to publication were limited to information to public through All India Radio or through newspapers on 8 10 87. After considering all these we came to the finding that the prohibitory order issued under section 6 (2) was not duly published because of the following reasons: "1. It is our considered view that the well recognised principle of publication of any order or notification is the publication in the official gazette. That which is published in official gazette is presumed to be undisputably published Though the present order required no publication in the official gazette, there is no such publication in this case and the other modes of publication resorted to were also not fully & adequately used. "2. The point in regard to the news bulletin broadcast by All India Radio on 7.10.87 at 7.10 in Hindi and at 8.5 in Rajasthan; has already been considered. In the news bulletin broadcast on 8.10.87 at 9.5, the only news said was that glorification of Sati by any indivi dual group or Association was banned in Jaipur with immediate effect and that its violation could attract imprisonment which can extend to seven years and fine upto three thousand rupees. In another bulletin of 7.10.87, is was broadcast that the Addl. District Magistrate has forbidden any demonstration or meeting or carrying of any arms in Jaipur city from 5 A.M. to 8 P M till 9th Oct. 87. In another bulletin of 7.10.87, is was broadcast that the Addl. District Magistrate has forbidden any demonstration or meeting or carrying of any arms in Jaipur city from 5 A.M. to 8 P M till 9th Oct. 87. It will be essential to point out here that the Collector's order was not broadcast for the information of the general public in the form it was issued. If we see the order of 6.10.87, we shall notice that what was forbidden was the glorification in any manner of an act of Sati. The order was not broadcast in its original form because what was broadcast was its part or substance only which could depend on the discretion of the person broadcasting. Therefore, in what form the Collector and D. M. issued the order can be known only by reading is as a whole. "3. We have given our serious thought to the news item dated 8.10.87. Clippings of Nav Jyoti, Nyaya, Nav Bharat Times, Rastra Dolt and Times of India have been produced. None of these newspapers has published the Collector's order in its original form In these papers also, only part of the order, depending on the judgment and discretion of the Editor, has been published. We are therefore, unable to bold that the order was got published through news papers, Publication of substance or part of it, cannot be deemed to be proper publication "4. That the committee organising meeting had mttde an application to the Collector on 6.10.87 seeking his permission to hold the meeting. The Addl. Collector and the Administrator Municipal Council had accorded permission on 7.10.87. The petitioners have submitted that till then no one was informed that the Collector, Jaipur had issued any order under the Rajasthan Sati (Prevention) Ordinance on 6.10.87 because in that case Senior Officers would not have given permission to hold the meeting. "5. The petitioners have mentioned in their petitions also that they had met the Chief Minister and many other Officers of the State not only on 8th but afterwards also but none told them about the issuance of notification on 6. 0 87 It is the petitioner's submission that probably even the high ranking officers of the State had no such information. "6. No one has explained why no steps were taken for its publication on 6.19.87 itself when it was issued on that day. 0 87 It is the petitioner's submission that probably even the high ranking officers of the State had no such information. "6. No one has explained why no steps were taken for its publication on 6.19.87 itself when it was issued on that day. Whatever facts are available on record show that steps in this direction were taken on 7.10 87 and that too in the evening. We have stated above that some 50,000 persons were expected to attend the meeting. The Collector at least must have known about it on 6.10.87 because the committee had stated in its application. It has not been clarified by the Collector that his order was placed on his offices notice board on 6.10.87. The Collector and District Magistrate's explanation could have been of vital importance in the instant case, but his affidavit was not produced. The only affidavit produced in this connection is that of Shri Dinesh Sharma, about which we have expressed our views above. "7. The Collector in particular and the public in general know that a meeting was to take place at Ramlila ground. I hey knew about the time of the meeting also but no arrangement was made by any means such as loudspeaker, pamphlates or other mode to inform the public present on the spot about the Collector's order of 6.10.67. "8. The Collector's order issued on 6.10. 7 in English language. Under the Official Language Act. Hindf is ordinarely the language of this province. The general public can understand any order in Hindi only but this order was issued in English for the information of those where large part has not read english. It is true that none of the petitioners has made any complaint about it. But we have mentioned this because the petitioners are not the only affected party but all those who had gone to attend the meeting or those thinking to attend it and who, despite the Sari (Prevention) Ordinance, intended to glorify the act of Kati. "9. That no material is available on record to show that the Collector or the State Government used any other mode of publication in regard to this order. The beating of drums, affixing copies on conspicuous places where people normally go and assemble, could have constituted such means 10. We have perused the files concerning both the cases besides the case diary. The beating of drums, affixing copies on conspicuous places where people normally go and assemble, could have constituted such means 10. We have perused the files concerning both the cases besides the case diary. There too, the Investigating Officer obtained the copy of the Collector's order for the first time on 4.11,87, whereas the F I.R. relating to case No. 270/87 was dated 8 10.0 and the other relating case No. 481 /87 was registered on 30.10.87 and the F I.R. concerning case No. 238/87 of Police Station Kotputli was registered on 20.10.87. "11. That according to the principles laid down by the Supreme Court and the High Courts in the above rulings, no criminal law can be made applicable to any person nor can any one be punished for its violation. until it has been published only and in accordance with the well recognised mode. Thus the publication of the Collector's order dated 6.10.87 was not proper and its publication in the form it was made, was incomplete an i inadequate. 351. As stated above, the order issued by the Collector. Jaipur under section 6(2) on 6 10.87 was not published in accordance with law. We have now to see whether or not any case is made out against the petitioners justifying permission to the prosecution to proceed. it' no case is made out, continuing any proceeding will by no means be proper, reasonable and just.352. We have expressed our views earlier also that a perusal of F.I.R. indicates that remand proceedings and all other proceedings relating to these cases including even the reply tiled by the State, the entire basis of proceeding or prosecution was the assumption that by violating the Collector's prohibitory order under 6(2), the petitioners had rendered themselves liable to publishment under Section 6(3). We have made it clear that Section 6 specifically says that if any offender falls within the mischief of Section 6, he can be liable to pubishment under Section 6(3). But if the offence does not come within the purview of Section 6, the punishment can be given in accordance with the penal provisions contained in Section 5. We have made it clear that Section 6 specifically says that if any offender falls within the mischief of Section 6, he can be liable to pubishment under Section 6(3). But if the offence does not come within the purview of Section 6, the punishment can be given in accordance with the penal provisions contained in Section 5. We had also made it clear that in our view, the allegations levelled against the petitioners can fall only under the provision of Section 6(3) and when they fall under Section 6(3), Section 5 ipso facto merges into it and it cannot be attracted in any case. That is why Section 5 has been added to the offence under Section 6(3) much later in these cases. In our view, the alleged offence can en the basis of facts, be brought only under the provisions of Section 6(3). Sec 5 is not applicable in any way and we are of the considered view that the learned Advocate General Shri M.I. Khan's arguments in this respect, are without foundation.353. At this stage of the judgment the learned Advocate General M. I. Khan has argued that the question in regard to the publication of the cider is based on evidence and when it is so, this court should not consider it. We may make it clear that from the very begining and till dictating judgment, we had given both the parties full freedom and opportunity to produce whatever information they wanted to, by way of documents or affidavit. And documents and Affidavits have been produced on behalf of the State from time to time and even today, when this judgment was being dictated. Sh.i Dinesh Sharma's affidavit has been produced correcting the mistake committed in earlier affidavit which we had commented. Not only this, the text of the news broadcast by All India Radio, not produced before. has been produced alongwith the affidavit which we have entertained. Therefore, when all possible evidence about which both the parties were given full opportunities, has been placed on record. we are not inclined to accept the view that we should not consider the matter simply because evidence should have been led of that the lower court can or should record evidence. Therefore, when all possible evidence about which both the parties were given full opportunities, has been placed on record. we are not inclined to accept the view that we should not consider the matter simply because evidence should have been led of that the lower court can or should record evidence. We have called for the files relating to the three cases before us from the Court of Special Judge and rescued all the documents produced with the charge sheet. These cases before the Special Court are; State v. Pratap Singh; case No. 8/87. F I.R. No. 451/87 ; State v. Narendra Singh Case No. 2/87, F.I.R. No. 270/87 and State v. Hath Singh; Case No 3/87. F.I.R. No. 238/87 . No material has been produced in regard to the publication of the order in these cases also, whereas in the instant case both the parties have produced evidence and they were given full opportunities to do so.354. The above discussion leads us to the following conclusions (1) That the publication of the Collector's order under Section 6(2) of the Rajasthan Sati (Prevention) Ordinance, 1987 was incomplete and inadequate and consequently not in accordance with law. (2) Since the prohibitory order issued by the Collector, Jaipur under Section 6(2) of Rajasthan Sati (Prevention) Ordinance, 1987 was not published adequately no case against the petitioner under the provisions of Section 6(3) of the said Ordinance can be made in accordance with Criminal Procedure. (3) That no offence against the petitioners under Section 6(3) of the said Ordinance is made out. No offence is also made out under Section 5 because Section 5 automatically gets merged into Sec 6 and which is not attracted in the instant case. (4) That as a result of the above findings, and exercise of powers vested in us by virtue of Article 226 of the Constitution of India and Section 482 Cr. P.C., we accept the petitioners' following habeas corpus writ petitions and petitions under Section 482 Cr. P.C. Habeas Corpus Petitions: S.No. Petition No. Name of the Petitioner Police Station with F.I.R. Number. 1 2901/87 Onkar Singh v. State and other 280/87 Moti Dungri Jaipur, 2 2923/87 Narainlal & Ors. v. State of Raj 451/87 Manak Chowk Jaipur. 3 3126/87 Narain Lal v. State of Raj. 487/87 Manak Chowk Jaipur. Petitions under Section 482 Cr. P.C. Habeas Corpus Petitions: S.No. Petition No. Name of the Petitioner Police Station with F.I.R. Number. 1 2901/87 Onkar Singh v. State and other 280/87 Moti Dungri Jaipur, 2 2923/87 Narainlal & Ors. v. State of Raj 451/87 Manak Chowk Jaipur. 3 3126/87 Narain Lal v. State of Raj. 487/87 Manak Chowk Jaipur. Petitions under Section 482 Cr. P.C. : 1 781/87 Rajendra Singh v. State 2 782/87 Bhagirath Singh v. State 3 784/87 Bhagirath Singh v. State 4 792/87 Rajendra Singh v. State 5 796/87 Ram Singh Manohar v. State. (5) The entire proceedings in the following cases pending in the Special Judge are quashed : S.No. Case No. Title of Case Name of Police Station with Number of F.I.R. 1 01/01/87 State v. Pratap Singh 451 /87 Manak Chowk Jaipur. 2 02/01/87 State v. Narendra Singh 270/87 Moti Dungri Jaipur. 3 03/01/87 State v. Het Singh 238/87 Kotputli, Jaipur. (6) We quash the investigation proceedings in regard to above stated F.I.Rs, and declare all proceedings in regard to above eases void and quash them. (7) We direct that those amongst petitioners Onkar Singh. Ram Singh Manohar, Pratap Singh, Narendra Singh, Anand Sharma, Dr. Indra Kumar, Laxmi Narain Lotterywala, Narayan Lai, Ram Bharose, Het Singh, Rishal Singh, Prem Narain, Bhagirath Singh, Mool Chand, Jatan Singh, Jaimal Singh and Rajendra Singh not yet released on bail by the Special Court, be released at once and the bail bonds of those petitioners already on bail, are hereby cancelled. (8) We further direct that while releasing the said persons, it must be ensured that they are not required in connection with any other criminal case. 355. We deem it our duty to state here that these cases have been decided on a s;ngle technical ground but let no petitioner or any other person take it that by this judgment under Sati (Prevention) Ordinance, he has got a permission to glorify Sati or that he is out of the reach of the offences declared under Rajasthan Sati (Prevention) Act.356. The learned Additional Advocate General has prayed that the operation of this judgment be stayed since the State Government wants to prefer an appeal against this judgment to the Supreme Court and which will take time. We have heard the arguments advanced by the learned Addl. Advocate General. The learned Additional Advocate General has prayed that the operation of this judgment be stayed since the State Government wants to prefer an appeal against this judgment to the Supreme Court and which will take time. We have heard the arguments advanced by the learned Addl. Advocate General. In our view there is no justification for staying the operation of the order because most of titre petitioners in this case have already been enlarged on bail and when the arguments in this case had began, the learned Addl Advocate General had suggested that the petitioners could move the compet nt court for bail and they could also be enlarged on bail as other persons had been enlarged. In view of these circumstances, was reject the above prayer of the learned Addl. Advocate General While deciding these petitions, we have dealt with only constitutional questions. We have done our best not to hurt either directly or indirectly, the religious feelings, thoughts or beliefs of any person.357. It is obvious that we have given the above figures to indicate the age in which Sati was recognised as a custom and prevalent in some castes on large or small scale. It will not be proper to say that this was prevalent in a particular caste. For instance, the case of Tej Singh (2) itself is indicative of the fact that this Sati incidence of 1956 took place in a Brahmin family. Before partine with the judgment, we would like to make it clear that constitutionally and from the point of view of social thinking and fellow feeling, the news papers and other media of communication have equal responsibility as that of judiciary, executive and legislature. They should work for social awakening and consciousness against social evils from time to time and in that sense it has been unfortunate that after the decision in Tej Singh case, no efforts were made either by administration or other media )f communication to arose a consciousness among those living in remote Dhanis' that it was a grave offence and that it had nothing to do with relig ous belief.358. Unfortunately, even today the percentage of illitrate people in our society is large and owing to illitracy and superstition in remote v.llages and huts old social evils prevail which not only the Constitution, but is wa have said above, in every age, the leaders of society, be they Social Reforms or Kings or Emperors or Mughal Emperors or English Governor General or Viceroy, or Privy Coucil attempted to abolish.359. If the entire society, the legislature, the executive, the judiciary and all social reformers the Press. the intelligentia, discharge their functions fearlessly with a feeling of compassion for the women and desire to abolish social evil such as atrocities against women, widow burning, dowry death, strangulating a girl on her birth. perhaps this bill or enactment would be more effective for, by mere enactment, or knowledge of its validity or invalidity social consciousness cannot be awakened We expect that all classes of people will, in this context, discharge their duties and will not let any kind of prejudice, malice or difference to blur their vision so that in this Nation, In India where we call Nation as our mother and believe in 'Matri Deo Bhavti' woman can be truely worshipped.360. We would like to express our gratitude to all such lawyers whether appearing for Govt. or petitioners as have during the past three weeks, duly assisted this Court for no other reason save to get a correct decision from the Court. But for the contribution on legal and social subjects, the decision in such a short and record time and difficult complex and complicated issue would not have been possible.361. On behalf of the Government, the Advocate General Shri Nathulal Jain, Additional Advocate General Shri M.I. Khan, their associates Shri Rajkumar Kala, Shri Maghraj Kalla most ablely presented their cases. From the side of petitioner, Shri Manak Chand Surana, Shri S. D. Sharma, and young advocate Shri Rajendra Prasad Sharma, Smt. Kapila Hingorani, Shri Sajjan Singh etc. fully cooperated and ably assisted the Court. Without taking any side, Shri Satish Chandra P garwal, tirelessly assisted the Court on constitutional points. Likewise, many other advocates notably Shri Girdhar Acharya, Shri Durgalal Bardar, Amar Singh Chaturvedi and Vimal Chaudhary fully assisted this Court. Smt. Kapila Hiuigc.rani assisted us by throwing light on the problems of women in society and their significances besides arguing on the invalidity of Section 19. Likewise, many other advocates notably Shri Girdhar Acharya, Shri Durgalal Bardar, Amar Singh Chaturvedi and Vimal Chaudhary fully assisted this Court. Smt. Kapila Hiuigc.rani assisted us by throwing light on the problems of women in society and their significances besides arguing on the invalidity of Section 19. 11 this respect, Shri Surana gave his full cooperation. Not only this Smt. Aruna Asaf All has stated in her application, to which Smt. Hingorani who threw light on social offences, has also let her support in her argument that there should be amendment in the Indian Representation Act with a view to prevent entry of such criminals and anti-social elements into Legislature. In our view it is not within the jurisdiction of this Court to do it. Only Parliament is competent to consider whether it is proper or not to do so.362. The petitioners other than Yadu Nath Singh and Dr. Aruna Asaf Ali have prayed that as Section 19 has been declared unconstitutional and other sections declared valid, questions of great constitutional importance have sprung up in this High Court in relation to which decision of the Supreme Court will be in public interest, therefore, they be permitted to prefer an appeal against this judgment or the judgment may be postponed, or its operation be stayed.363. Shri Manak Chand Surana has prayed on behalf of Shri Yadu Nath Singh that they be permitted to tile an appeal to the Supreme Court against the decision given on the constitutional points raised by them.364. The Additional Advocate General Shri Khan has made a prayer that as the proceedings in cases No. 1187, 2/87 and 3/87 pending in the Court of Special Judge, have been quashed and bail bonds cancelled, the operation of the relevant part of the judgment be stayed so that he can seek stay order from Hon'ble the Supreme Court.365. Both sides have opposed each other's prayer. We gave a serious thought to all these requests. We have devoted full three weeks to the hearing of writ petitions and decision thereon. After detailed analysis we found that most of the questions have been settled since ages and not today and in our view, there is hardly any room for dispute. Both sides have opposed each other's prayer. We gave a serious thought to all these requests. We have devoted full three weeks to the hearing of writ petitions and decision thereon. After detailed analysis we found that most of the questions have been settled since ages and not today and in our view, there is hardly any room for dispute. So far the question of appeal from the judgments of High Court under Article 13'_ of the Constitution of India is concerned the High Court can certify only when the question involving points of great Constitutional importance arises from the decision in a case or writ petition.366. Let us refer to the prayer made by Shri Sahab Dayal Sharma, who represents the petitioners. It has been clearly stated by us above that the question of the religious nature of Sati had already been completely decided by the Kings in the times of English Rulers hundreds of years before the Constitution came Into operation and in its numerous decisions, the Supreme Court has not recognised it as a religious custom but has characterised it as a social evil. Be it a question relating to Section 25 or 26 or the objectives of the enactment, or the question in regard to the powers of the Speaker of the Assembly, its raised by Shri Sharma it is in our view that after above detailed discussion, there is little room for two opinions. Therefore, under Article 132 of the Constitution of India, the question of great constitutional importance being involved does not arise.367. If, after dismissing Shri Sharma's prayer, we consider the points raised by Surana in this context, it would appear that Article 174 empowers the Governor to prorogue the House and he has powers to issue Ordinance. We have made it amply clear above that in the context of the perspective, no question of malafides or violation of constitutional conventions attracts to the issuance of the Ordinance, perhaps the Governor's act could be termed unjustified but his constitutional powers cannot be snatched. We have held that the Legislature has expressed its view in support of the Ordinance issued by the Governor by setting its seal of approval on the Ordinance.368. Now the entire controversy touching the powers to issue Ordinance has desended down from the position of paramount importance to legit guibbles.369. As for Mr. We have held that the Legislature has expressed its view in support of the Ordinance issued by the Governor by setting its seal of approval on the Ordinance.368. Now the entire controversy touching the powers to issue Ordinance has desended down from the position of paramount importance to legit guibbles.369. As for Mr. M.I. Khan's standpoint on the powers under Article 226 of the Constitution of India and Section 482 Cr. P.C. in relation to the pending cases under the Ordinance in the Special Court, the Supreme Court has in our view, defined our powers not once but several times. It was argued that we have no jurisdiction but we have exercised only those powers which fall within our jurisdiction.370. Making his request more specific. Mr. Khan has stated that he has not prayed for permission to go in appeal to the Supreme Court but has only sought stay on the orders quashing the cases pending in the Special Court so that he can obtain a stay order from the Supreme Court We have given a serious consideration to this point also. The cases relating t., Sati incident that is, concerning Roop Kanwar's burning are not the subject matter of these petitions before us because charge-sheets pertaining to them have been laid down in Neem Ka Thana of Sikar District where they are pending and will continue.371. The cases we have quashed are not the original cases but merely those relating to meeting or procession in allegedly an attempt to glorify Sati, about which we have stated in detail that the meeting was held with the permission of the State Government. In view of the reasons which led us to quash them. It will do little good to any party to let them continue pending in the Court till a stay order is obtained. It is obvious that if for ;my reason the Supreme Court sets this judgment aside. it will cr, ate no obstacle whatever for the State Government or the Special Court to restore the case, Shri Khan had clearly stated earlier that like ether petitioners, these petitioners could also be released on bail In view of the foregoing reasons, we are not in a position to accept these prayers and they arc rejected.372. it will cr, ate no obstacle whatever for the State Government or the Special Court to restore the case, Shri Khan had clearly stated earlier that like ether petitioners, these petitioners could also be released on bail In view of the foregoing reasons, we are not in a position to accept these prayers and they arc rejected.372. To recapitulate, the main points of our decision are : (1) Barring Section 19, the Rajasthan Sati (Prevention) Ordinance, 1987 (Annexure-1) and the Rajasthan Sati (Prevention) Act, 1987 (Annexure-2) are perfectly legal and constitutional. (2) Section 19 of the Rajasthan Sati (Prevention) Ordinance and the Rajasthan Sati (Prevention) Act,1987 is unconstitutional and is declared void and is struck down. (3) The custom of Sati or sati as defined in the Ordinance and Act cannot be accepted as an integral part of the Hindu religious or in keeping with the religious feelings or as religious sanskar in Shastras of Hindu religion. (4) The definition of Sati as given in the Ordinance or Act is limited to the Ordinance or Act only. It does not in any way hurt or attach religious feeling of the Hindus. (5) The Sati Prevention Ordinance or Act does not violate the freedom of religion kept inviolable by Articles 25 and 26 of the Constitution of India, (6) Even if there is a slight possibility that based on some wrong belief sati-widow burning, should be taken to be a religious custom, it being against Public Morality as envisaged in Article 25 of the Constitution of India has no constitutional protection. So the said Ordinance, 19s7 and Act 198, are constitutionally protected. (7) Even if widow burning has been continued as an evil practice in some circles or families, this practice being against the provisions of the Constitution of India becomes illegal as a result of the force of Article 13 of the Constitution of India. (8) Section 17 and 18 of the Ordinance and the Act deftning' 'Sati' or 'glorification' are valid and attacks in petitions on their validity are dismissed, (9) Section 19 of the Act and Clause 19 of the Ordinance is ultra vires of the Constitution as it is against the objectives of the said Sati Act and retrograde and violative of Articles 13, 14, 21, 25. 51-A (e). 51-A (e). (10) In exercise of the powers vested in us under Article 226 of the Constitution and Section 482 of Cr. P.C. we consider the habeas corpus petitions and these under Section 482 (r. Y.C. presented by Shri Narayan Lai, Ram Bharose Gupta, Mool Chand Chaudbry, Jatan Singh, Jai Mal Singh, Hetsingh,iRisalsingh. Premnarain Meena, Onkar Singh, Ramsingh Manohar, Pratapsingh. Narendrasingh, Anand Sharma, Dr, Indra Kumar. Laxmi Narayan Lotteriwala, Rajendrasirgh Rathore, Bhagirathsingh Shekhawat acceptable and the petitioners Shri Narayan Lai Bhardwaj son of Ramsahai, Ram Bharose Gupta son of Moo] Chand. Mool Chand Chaudhry son of Goma Ram, Jatan Singh son of Bhanwarsingh, Jaimal Singh Yadav son of Mool Chand. Hetsingh son of Jaswantsingh. Rishalcingh son of Mamansingh, Prem Narain Meena son of Bhura Ram Meena, Onkarsingh son of Dhoolsingh. Ramsingh Manohar son of Sawaisingh Pratapsingh son of Raghuveersingh, Narendrasingh, Anand Sharma son of Ramkishore, Dr. Indra Kumar son of Mangal Chand, Laxmi Narayan Lotterywala son of Rajendra, Rajendra Singh Rathore son of Uttamsingh, Bhagirathsingh Sckhawat son of Ramat Singh are released immediately and cases No. 1/87, 2/87 and 3/87 pending against them in Special Court, Jaipur are quashed. (11) The decision on the constitutionality of Sub-Section (3) of Sec 1 of the Act is unnecessary in this judgment therefore it is left open for future. (12) Writ Petitions of Yadu Nath Singh and Dr. Aruna Asaf Ali are partly accepted, the remaining petitions arc dismissed. Habeas Corpus petitions and applications under Section 482 Cs. P. C. are accepted. (13) The Speaker's act of proroguing State Assembly sine die on 30th Sept. 1987 was within his competence and was constitutional, though, the conduct of the then Speaker in regard to an incident in the time of Charles I can be a source of inspiration for all Speakers. (14) Speaker Shri Girraj Prasad Tiwari did not prorogue the House malafide or under any body's pressure. (15) The act of Governor Sbri Basant Dada Patil of proroguing the Assembly Session sine die on 30 9 87 under Article 174 of the Constitution of India cannot be termed malafide or unconstitutional though the use of power to prorogue for the purpose of issuing Ordinance can possibly be considered unjustified. By issuing the Sati Ordinance, the Governor did not violate the constitutional authority under Article 213 of the Constitution of India. By issuing the Sati Ordinance, the Governor did not violate the constitutional authority under Article 213 of the Constitution of India. (16) Under entry (I) and (2) of the List No. 3 of Schedule 7 of the Constitution the Governor of Rajasthan had perfect constitutional authority to issue Sati Ordinance. (17) Under the Law Minister Shri P Shiv Shankar in regard to preventive legislation against Sati and even if the petitioners' allegations in this regard are accepted as true. the procedure adopted cannot be termed improper. (18) Widow burning was prevented by Rulers of Jaipur and other Princely States in 18th Century and it was never recognised as a religious practice. (19) The use of concept of 'Sati' as chaste sacred and pious women and its glorification in this sense cannot be considered an offence under the Act or Ordinance, 1987 and functions, temples or constructions for such glorification do not fall within the purview of this Act or Ordinance. The offence is limited to -widow burning." 373. The parties will bear the entire expenses of their respective petitions. Its authenticated translation into English be attached to this judgment. Annexure I The Rajasthan Sati (Prevention) Ordinance, 1987 X X X X X Annexure II THE RAJASTHAN SATI (PREVENTION) ACT, 1987 (Act No. 40 of 1987) (Received the assent of the President on the 26th day of November, 1987.) An Act to provide for the more effective prevention of Sati and its glorification and for matters connected therewith or incidental thereto.Be it enacted by the Rajasthan State Legislature in the Thirty-eighth Year cf the Republic of India as follows : PART-I Preliminary 1. Short title, extent and commencement-(1) This Act may be called the Rajasthan Sati (Prevention) Act, 1987. (2) It extends to the whole of the State of Rajasthan. (3) It shall be deemed to have come into force on the 1st Oct., 1987. 2. Definitions-(I) In this Act, unless the context otherwise requires - (a) "Code" means the Code of Criminal Procedure, 1973 (Central Act 2.. of 1974); (b) "glorification", in relation to Sati. includes, among other things. (3) It shall be deemed to have come into force on the 1st Oct., 1987. 2. Definitions-(I) In this Act, unless the context otherwise requires - (a) "Code" means the Code of Criminal Procedure, 1973 (Central Act 2.. of 1974); (b) "glorification", in relation to Sati. includes, among other things. the observance of any ceremony or the taking out of a procession in connection with Sati or the creation of a trust on the collection funds or the construction of a temple or the performance of any ceremony threat with a view to perpetuating the honour of, or to preserve the memory of, a widow committing sati; (c) "sati". means the burning or burying alive of any widow along with the body of the deceased husband or with any article, object or thing associated with the husband, irrespective of whether such burning or burying is voluntary on the part of the widow or otherwise; (d) "Special Court" means a special Court constituted under section 9; (e) "temple" includes any building or other structure, whether roofed or not. constructed or made to preserve the memory of a widow committing sati and use I or intended to be used for the purpose of worship or offering prayers; (f) Words and expressions used but not defined in this Act and defined in the Indian Penal Code (Central Act 45 of 1860) or in the Code shall have the same meanings as are respectively assigned to them in the Indian Penal Code or the Code. PART II Punishments for offences relating to Sati3. Attempt to commit Sati-Notwithstanding anything contained in the Indian Penal Code (Central Act 45 of 1860), whoever attempts to commit sati and does any act towards such commission shall be punishable with imprisonment for a term which shall not be less than one ye it but which may extend to five years and shall also be liable to fine which shall not be less than five thousand rupees but which may extend to twenty thousand rupees.4. Abetment of ati:-(l) Notwithstanding anything contained in the Indian Penal Code (Central Act 45 of 1860), if any widow commits sati, whoever abets the commission of such sati, either directly or indirectly shall be punishable with death or imprisonment for life and shall also be liable to fine. Abetment of ati:-(l) Notwithstanding anything contained in the Indian Penal Code (Central Act 45 of 1860), if any widow commits sati, whoever abets the commission of such sati, either directly or indirectly shall be punishable with death or imprisonment for life and shall also be liable to fine. (2) If any widow attempts to commit sati, whoever abets such attempt shall be punishable with imprisonment for life and shall also be liable to fine. Explanation-For the purposes of this section, any of the following acts shall also be an abetment, namely : (a) any inducement to a widow to get her burnt or buried alive along with the body of her deceased husband or with any article, object or thing associated with him irrespective of whether she is in a fit state of mind or is labouring under a state of intoxication or stupefaction or other cause impeding the exercise of her free will; (b) making a widow believe that the performance of sati would result in some spiritual benefit to her or her deceased husband or the general well being of the family; (c) encouraging her to remain fixed in her resolve to commit sat and thus instigating her to commit sati; (d) participating in any procession in connection with the commission of sari or intentionally aiding the widow in her decision to commit sati by taking her along with the body of her deceased husband to the cremation or burial ground (e) obstructing, or interfering with, the police in the discharge of its duties of taking effective steps to prevent the commission of sati; (f) preventing or obstructing the widow from saving herself from being burnt or buried alive; and (g) being present at the place where the sati is committed as an active participant to such commission or to any ceremony connected with it. 5. Punishment for glorification of Sati:-Whoever does any act for the glorification of sati shall be punishable with imprisonment for a term which .hall not be less than one year but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to thirty thousand rupees. PART III POWER OF COLLECTOR AND DISTRICT MAGISTRATE TO PREVENT OFFENCES RELATING TO SATI.6. PART III POWER OF COLLECTOR AND DISTRICT MAGISTRATE TO PREVENT OFFENCES RELATING TO SATI.6. Power to prohibit certain acts:-(I) Where the Collector and District Magistrate :s of the opinion that sati is being or is about to be, committed in any area, may, by order, prohibit the doing of any act towards the commission of sati in such area or areas and for such period as may be specified in the order. (2) The Collector and District Magistrate may also, by order, prohibit the glorification in any manner of the commission of sati by any person in any area or areas specified in the order. (3) Whoever contravenes any order made under sub-section (1) or sub-section(2) shall, if such contravention is not punishable under any other provision of this Act, be punishable with imprisonment for a term which shall not be less than one year but which may extend to thirty thousand rupees. 7. Power to remove certain temples or other structures:-(I) The Collector and District Magistrate may if he is satisfied that any temple or other structure has been or is being, constructed for the glorification of the sati, by order, direct the removal of any such temple or other structure. (2) Where any order under sub-section (1) is not complied with, the Collector and District Magistrate shall cause the temple or other structure to be removed through a police officer not below the rank of Sub-Inspector at the cost of the defaulter, 8. Power to seize certain properties:-(I) Where the Collector and District Magistrate has reason to believe that any funds or properly have been collected or acquired for the purpose of glorification of the commission of any sati or which may be found under circumstances which create suspicion of the commission of any offence under this Act, he may seize such funds or property. (2) Every Collector and District Magistrate acting under sub-section (I) shall report the seizure to the Special Court if any, constituted to try any offence in relation to which such funds or property were collected or acquired any shall await the orders of such Special Court as to the disposal of the same. PART-IV Special Courts9. Trial of offences under this Act:- (1) Notwithstanding anything contained in the Code, all offences under this Act shall be triable only by a Special Court constituted under the, section. PART-IV Special Courts9. Trial of offences under this Act:- (1) Notwithstanding anything contained in the Code, all offences under this Act shall be triable only by a Special Court constituted under the, section. (2) The State Government, shall as soon as it receives information about the commission of sati in any place within the State, by notification in the official Gazette constitute a Special Court consisting of a person to be appointed by State Government after consultation with the Chief Justice of the High Court for the trial of all offences under this Act and every Special Court shall exercise jurisdiction in respect of the whole or such part of the State as may be specified in the notification. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is in the cadre of a District and Sessions Judge in the State. 10. Special Public Prosecutor:- (1) For every Special Court, the State Government shall appoint a person to be a Special Public Prosecutor. (2) A person shall he eligible to be appointed as a Special Public Prosecutor under this section only if he had been in practice as an advocate for not less then seven years or has held any post for a period of not less than seven years under the State of Rajasthan requiring special knowledge of law (3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code and the provisions of the Code shall have effect accordingly. 11. Procedure and powers Special Courts-(I) A Special Court may take cognizance of any offence. without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. (2) Subject to the other provisions of this Act, a Special Court shall, for the purpose of the trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Session. 12. 12. Power of Special Court with respect to other offences-(1) When trying any offence under this Act, a Special Court may also try any other offence with which the accused may under the Code be charged at the same trial if the offence is connected with such other offence. (2) If in the course of any trial of any offence under this Act it is found the accused person has committed any other offence under this Act or under any other law, a Special Court may convict such person also of such other offence and pass any sentence authorised by this Act or such other law for the punishment thereof. (3) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and, in particular, where the examination of witnesses has begun, the same shall be continued from day to day until all the witnesses in attendance have been examined and if any Special Court finds the adjournment of the same beyond the following date to be necessary, it shall record its reasons for doing so. 13. Fotfeiture of funds or property. Where a person has been prosecuted for an offence under this Act, a Special Court trying such offence may. irrespective of whether any punishment has been awarded or not, if it is considered necessary so to do declare that any funds or properly seized under section 8 shall stand forfeited to the State.14. Appeal-(]) An appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days it it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days. PART-V Miscellaneous 15. PART-V Miscellaneous 15. Protection of action taken under this Act.-No suit, prosecution or other legal proceedings shall lie against the State Government or any officer or authority of the State Government or any authority to whom powers have been delegated under this Act for anything which is in good faith done or intended to be done in pursuance of this Act or any rules or orders made under this Act.16. Burden of proof - Where any person is prosecuted of an offence under section 3 or section 4, the burden of proof that he had not committed the offence under the said section shall be on him.17. Obligation of certain persons to report about the commission of offence under Act.-(t) All officers of Government are hereby required and empowered to assist the police in the execution of the provisions of this Act or any rule or order made thereunder. (2) All village officers and such other officers as may be specified by the Collector and District Magistrate in relation to any area and the inhabitants of such area shall if they have reason to believe or have the knowledge that sati is about to be. or his been, committed in the area shall forthwith report such fact to the nearest Police Station. (3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. 18. Act to have over-riding effect. The provisions of this Act or any rule or order made there under shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.19. Removal of doubts.-For the removal of doubts, it is hereby declared that nothing in this Act shall affect any temple constructed for the glorification of sati and in existence immediately before the commencement of this Act or the continuance of any ceremonies in such temple in connection with such sati.20. Power to make rules.-(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. Power to make rules.-(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) Every rule made under sub-section (1) shall be laid as soon as may be after it is so made before the House of State Legislature while it is in session for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, before the expiry of the sessions immediately following the session or the successive sessions aforesaid, the House agrees in making any modification in the rule or agreed that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Rule. 21. Repeal and Savings.-(I) The Rajasthan Sati (Prevention) Ordinance, 1987 (Ordinance No. 21 of 1987) is hereby repealed. (2) Notwithstanding such repeal, all things done, actions taken or orders made under the said Ordinance shall be deemed to have been done, taken or made under this Act. S R. Bhansali Secretary to the GovernmentD. B. Habeas Corpus Petitions No. 2901/87,3126/87,2923/87 Allowed and S. B. Cri Misc. Petitions No. 2923/87, 781/87, 782/87, 784/87, 792/87 And 976/87 Allowed and D. B. Civil Writ Petitions No. 2628/87 & 3192/87 Partly Allowed and D. B. Civil Writ Petitions No. 2548/87, 2632/87, 2626/87 2617/87 & 2616/87 Dismissed. *******