Podcast with Dr. Saumya Saxena – Law School Policy Review

Aastha Nayak

Spirit possession, a phenomenon often relegated to the realms of folklore or religious belief, carries surprisingly complex and often overlooked legal and social implications, particularly in diverse cultural contexts. What happens when individuals or even legal systems grapple with actions or statements made under the influence of what is believed to be spirit possession? How do legal frameworks, especially in a country like India, attempt to categorize or respond to such phenomena?

In this podcast, my fellow editor Jairaj and I are privileged to speak with Dr. Saumya Saxena, an associate professor at Jindal Global Law School.

Dr. Saxena’s research offers a critical lens into these intersections, drawing on her extensive work in legal history, gender, and family law in South Asia. Dr. Saxena’s impressive background includes her tenure as a British Academy postdoctoral fellow and affiliated lecturer at the Faculty of History, University of Cambridge, and her academic journey through the University of Cambridge and the University of Oxford.

Dr. Saxena, we are truly honored to have you join us on the LSPR podcast.

Saumya Saxena

Thank you, Aastha. Thank you, Jairaj.

Aastha Nayak

To begin – for our audience who might be less familiar with the phenomenon, how would you describe the lived reality of spirit possession in India, particularly within the context you’ve studied?

Saumya Saxena

So, spirit possession has seen a lot of attention from anthropologists; it’s also seen some attention from medicine, psychiatry, psychoanalysis; in literature, you could say that a lot of people have studied folklore, they’ve studied about different kinds of, ghost stories that were common in villages and urban legends and so on and so forth. In the legal sense that I encounter (it’s very rare that it happens) but sometimes, cases of murder in particular, or where a death has occurred, these cases of spirit possession trickle into courts.

And that is the bit that I’m interested in because what it really means in the legal sense is that the idea of agency completely shifts. Whereas cultural explanations accommodate for that — you could say, for instance, in cultural studies or in anthropology, there would be a certain conversation about the dispossessed body, so the body being used as a vessel, where there’s no agency of the person who is claiming to be possessed or is accused of being possessed — whereas in law, that doesn’t work. So that translation plays out in very, very different ways. Let’s say in medicine, you have an understanding of spirit possession which could translate to multiple personality disorders or different forms of schizophrenia, so on and so forth. Similarly, in cultural studies, you have theories of dissociation, theories of communication, where the body is used to communicate about something else: about the spirit of a late ancestor, or a malevolent spirit, or a gentle, saintly spirit, or the spirit of a god, a relative, or a friend. So in anthropology, there’s a lot of accommodation for this conversation.

But in law, which is the realm in which I’m investigating, very often you see translations of it. So when these kinds of phenomena translate to the legal register, very often it also carries the bias of the medical industry, which is then trying to translate a cultural phenomenon into a medicalized disease, kind of a phenomenon. But the primary sort of interest for me is assessing how women fare when the supernatural enters the legal realm. So how do women really fare when we are looking at evidence which is about spirit possession, something that law is quite antithetical to, something that law is not quite willing to accommodate? And as we will discover in our conversation, as it carries on, very often it doesn’t benefit women to have such ambiguity in law.

Aastha Nayak

When stories of spirit possession, particularly those involving death, enter the judicial system as murder cases, what is the immediate challenge for the legal system, which is, fundamentally rooted in a rational, evidence-based paradigm? Can you walk us through how this reframing typically unfolds in judicial proceedings? And as this plays out, how does it powerfully invoke the tradition versus modernity trope?

Saumya Saxena

I’ll answer this question in two parts. First, about the reframing, which is my primary interest, and then I will also talk about how the tradition versus modernity trope is deployed in the legal sense. So, reframing magic in legal terms is, let’s say, primarily what I’m investigating, which is why the paper is also titled “Ghost in the Courtroom,” which was meant to be a play on the words “elephant in the room,” because the courts never actually openly acknowledge that there is any merit in a story like this. They are supposed to be drawing the boundaries between the rational and the irrational, between the educated and the uneducated, the superstitious and the educated. So a lot of this boundary-setting takes place within the space of the court because they have to use witness testimonies which are fundamentally unreliable because they’re invoking ghosts and spirits, and they have to translate them and use them to establish a case where a crime has taken place, where a death has occurred, or where a murder or abetment to suicide has taken place.

The way in which this boundary-setting takes place is that the court is very emphatic about separating the rational from the irrational. What it really means is that we’re working with very different conceptions of justice. So, for instance, very often what is justice in the local narrative may be completely reversed in the legal narrative. I’ll give you an example. So, for instance, there has been a witch who’s been hunted. In the local narrative, the local panchayat or the local people might actually believe that this was a curse that has been lifted from the village, whereas the work of the law is going to be to completely reverse this premise and say that no, this woman was murdered, and therefore the actual culprit was not the woman, but the people who killed her, right? So, very different places where you can say justice is located. If we were to invoke Foucault also, the way the local and the legal look at the same problem, there’s a very different way in which they also locate power. So in the local narrative, one might say that the power might in some sense lie with the victim, who suddenly kind of rises to power in the moment of possession. But in the legal sense, if such a case were to reach the court, the court would say, “Oh, this person was insane,” or “This person didn’t know better and they were superstitious,” or “They were of unsound mind.”

I can actually walk you through some of the defenses that are actually used. So one of the ways in which this ambiguity plays out between the cultural and the legal context, what it means for the law is simply leniency in punishment, leniency in sentencing, leniency in conviction. And that is the broad way in which the reframing affects individuals. But how does it actually take place? The first thing that a story around superstition will injure is the idea of mens rea. It’s extremely difficult to establish criminal responsibility because very often the defenses that people will use would be insanity, incapacity, madness, mental breakdown, illiteracy, superstition, and unconscious crimes. This could be “committed by a person of an unsound mind,” “triggered in self-defense,” “lacking in intention,” or a “mistake of fact,” “acting in good faith.” All of this terminology is deployed mainly to, you know, create leniency in sentencing. Whether it’s intended to do that or not, what the ambiguity ends up creating is leniency in sentencing because it’s really difficult to establish agency.

Culturally, of course, like I said earlier, there is a way to accommodate this. There is a way to accommodate narratives around revenge, narratives around shame, narratives around “this occurred because, you know, a calamity fell on the village a month earlier, and somebody was held responsible for it,” and everybody locally is complicit in it. So what does that mean for law? That conviction is difficult because you don’t know how it began. You don’t know if there was one person responsible or if there was an entire village responsible, or if there was a particular caste or a group or a family that was responsible for creating this myth of this person being possessed. So all of this ambiguity translates, in one sense, to difficulty in establishing mens rea.

To give you a quick example of how it sometimes benefits the culprits – a case that didn’t reach the courts at all. You might have—and I’m only using this because it’s such a popular example—you know, the Burari killings that happened in Delhi, right? Where eleven members of the same family were convinced by one of the brothers, the younger brother of the family, and he was convinced that the spirit of his late father overtakes him and whatever he says thereafter is basically the will of the father. And he convinces his entire family to indulge in this sort of a mass suicide, right? In this case, there were no survivors, so it became a case which is relevant to the law to the extent of it involving a police investigation, but it’s not relevant in terms of punishment and sentencing and conviction, right?

But a similar case happened also in 2018. This is the case of Sanjay Nagorao Pote. And this was interesting because in this case, a man similarly claims that he was possessed by the spirit of the Lord Hanuman, and he says that in his moment of possession, he accused one of his relatives of being possessed by a spirit. And he said that, “I will now go on to perform an exorcism on you,” and in the process of that exorcism, the person actually died. And the entire family kind of witnessed the act. They were all complicit to the extent that they didn’t quite try to prevent it because in their minds, they were executing the will of God, right? So the will was not of the individual. And the court, the Mumbai High Court in this case, actually acquits the person because they say that, you know, he really did not know that he was actually committing a crime. He was doing this because he was executing someone else’s will. So they, of course, do not accept that this was the actual execution of the will of Lord Hanuman. But what it does mean is that it’s really difficult to establish an offense when the person is of an unsound mind. So again, what it really translated to was leniency in sentencing. So that’s how the reframing takes place and that’s how the reframing affects the individual.

Now, the second part of your question. This is about the tropes of tradition versus modernity. So we know that this was very common since colonial India. There was a conversation around civilizational superiority where there was the History of British India written by James Mill, a lot of conversation around how Indian tradition was meant to be unfair to women, how Indian religion was meant to be paganistic and all of that. And in order to counter that, there was this huge religious reform movement in the 1800s and so on.

Now, this framing has carried on in post-colonial India as well. And the way in which the divide from, let’s say, native superstition against legal-rational, you know, civilizational superiority translates to educated versus uneducated, rural versus urban, so on and so forth. Having said that, in post-colonial India—because my archive is not strictly looking at judgments (judgments, of course, are a very distilled version of the story) I also look at police records, I also look at legislative assembly debates—very often, what you would find is that despite there being a conversation around old tradition versus modernity and that tradition needs to be curbed through modernity. There are actors who are involved in the act of executing the law or implementing the law, who may be believing citizens. So you would find that, let’s say, the local police officer or the investigating officer who’s supposed to spread awareness about how witchcraft or witch-hunting is a bad idea, or let’s say sati is a cruel idea and it’s not legal, they would be individuals who are also believing individuals. So in the police records that I found, there was some hesitation on the part of some police officers to investigate at night because the local folklore also affects them. So to think of the tradition versus modernity debate, I could even say that it’s an upper judiciary versus, you know, the administration locally on the ground kind of a debate, because it could also be that the judge adjudicating the matter is also a believing citizen. But the law itself is meant to be rational. So that is what creates the ambiguity. That is what allows us to introduce leniency in sentencing, which I go on to argue is detrimental to women in most cases. But this ambiguity is generated because believing citizens are dealing with a rational law.

So that is the way in which one could argue that tradition versus modernity takes a slightly different role post-independence because we are also, post-independence, not necessarily trying to shun religion, right? Post-independence, it’s also about salvaging religion because the Hindu Code Bill is being debated in the 1950s, immediately post-independence. So it’s about separating faith from fallacy. So even religion is, in one sense, getting rid of its mortifying principles which are associated with superstition. So post-independence, dealings with superstition or dealings with religion are not about the rejection of tradition. It’s about dealing with tradition. It’s about dealing with religion in one sense, sanitizing religion to separate it from tradition. But it does take a slightly different tone than what it was in colonial India.

Aastha Nayak

Your research interests include gender, family law, secularism, and politics. The abstract of your paper also mentions that women often have a very specific experience of possession, reflecting unequal power relations. How does the “ghost in the courtroom” phenomenon connect to and illuminate these areas of your expertise? Beyond gender, how do factors like caste, class, or other vulnerabilities intersect with experiences of spirit possession, both in its occurrence and in its interpretation?

Saumya Saxena

Family law was actually quite a comfortable discipline when I moved from family law to starting to study spirit possession because I was already working with negotiations of religion with the state. So secularism and family law kind of is a very good example of how these negotiations take place. And at some point, religion, in the kind of the sanitized, creating sanitized versions of religion through codification of law, worked quite well with what religion tries to separate, which was very often what superstition was. So in that sense, it really did tie in with my research. Another aspect that tied it with family law was that very often the people most vulnerable to possession—and this is evidence I picked from ethnographies and anthropological writing on the subject—happened to be new daughters-in-law who were kind of entering these new families. So very often, the family dynamic or rights of women within families was still relevant to this project.

The other question that you asked—so basically, when it came to gender, the general misogyny that characterized women’s interactions with the state, in one sense I found, compounded when there was an element of superstition involved. Because alongside the gendered state patriarchy which, let’s say, women are encountering in cases of domestic violence and cases of divorce, when there is greater ambiguity, that greater ambiguity also goes on to benefit patriarchy. So in the gender sense, it was kind of a very easy flow because I was already reading a bunch of stuff on gender, and the theories of possession and the conversations around gender made me think that so far as the law is concerned—I know in anthropology and in culture there is an argument about gender not being necessarily a very useful category of historical analysis—but when it came to law, it still was, because law works with categories. So to that extent, gender remained quite relevant.

How does caste and other vulnerabilities – how do they play into this conversation? So basically, caste is everywhere, unless we are consciously trying to overlook it, caste is literally everywhere in every conversation. In spirit possession — I’ll borrow some evidence from anthropology to talk about what the literature really looked like on a subject like this – there are lots of writings about how caste, how possession worked among different castes and classes. Karen Kapadia’s work talked about alaku, which is the kind of possession that takes place among Dalits in Tamil Nadu. She compares it against the sort of temple dancing kind of trance possession which occurs to Brahmin men. So there’s a lot of writing on that. Clarinda Still’s work also talks about Dalit families in particular and how they experience possession. I remember I think it was Fuller or Freed and Freed, one of them made the argument about how in a local village, there was a person who got possessed and he was a person of a particular caste. But through his possession, because he was in a position to predict futures, he placed himself in a position where he had the powers to bless and curse. He actually managed to elevate his caste status. So lots of negotiations here as well. Even with gender, lots of negotiations. I think it was C. J. Fuller who calls spirit possession a “culturally tolerated opportunity to complain about female subordination,” because he talks about incidents where women in a moment of possession would ask for non-vegetarian food or eggs, things that they were not otherwise given, or things that, let’s say, their caste forbade them from eating. But in a moment of possession, you could demand, so you could ask. And this kind of takes us towards a very functionalist definition of possession, that through possession you communicate or through possession you negotiate. But caste plays into it in a very significant way. And a lot of anthropological studies talk about this upfront and talk about the different kinds of possessions that affect different castes and classes.

Legally, how does it play out? In law, it plays out—and this will become more clear as we discuss some of the cases—in law, it plays out very typically the way it does in any other realm of law, which is that there are certain ideal criminals that the law unfortunately recognizes and there are certain people who are given a greater benefit of doubt in the law. So if, for instance, a husband is claiming, as we’ll see in the examples that I go on to, if a husband is claiming that his wife was possessed and this happens to be an upper-caste family, the court is likely to look at expert testimony for insanity and acquit the husband. Whereas, let’s say if the receiving end of the law is somebody who’s died who happens to be a tribal or a lower-caste individual, the court is, in my experience, in the case law that I looked at, the court is very likely to say that, “Oh, this was a community that was given to believing that supernatural spirits exist.” And so basically, a tribal person’s death due to an accusation of possession or by an individual who said that they were possessed is likely to draw less sympathy from the courts, less sympathy from the police compared to a person of an upper-caste origin, or somebody who happens to be male. So the way in which this plays out in any other realm of law is very similar to how it plays out in cases of spirit possession, which is that greater sympathy is reserved for who the state recognizes as a default subject-citizen. A lot of writing on gender and a lot of writing on caste and the law will tell us about whether you performed as a good citizen before a court—whether you were an honorable wife, whether you were a non-adulterous, food-preparing wife—will determine whether a domestic violence case goes for or against you, right? Shrimati Basu’s work talks about this in the context of domestic violence in an incredible way. She shows a lot of evidence about how if women could prove before a court that they were good wives, they’re more likely to get the sympathy of the law. So similarly, in cases of possession, I found that depending on who you were as an individual and how you presented, the courts are likely to sympathize with you if you happen to be from a majority religion or somebody who was upper-caste and male, where the court kind of reserves its sympathy for you. So that’s the extent to which I think caste kind of overlaps in this conversation and that’s how you recognize vulnerability. It’s quite common across the board in all realms of law.

Aastha Nayak

How did the colonial legal system grapple with evidence of the supernatural, and are there continuations or ruptures in how the postcolonial Indian courts approach these issues compared to their colonial predecessors? How does this compare with the broader postcolonial treatment of colonial norms and procedures?

Saumya Saxena

When I compare it with colonialism, I don’t necessarily see 1947 as a big moment of rupture or a massive moment of continuity, but the presence of the Constitution does change quite a few things. So the bit that I mentioned earlier about the Hindu Code Bill actually does play a significant role in the postcolonial psyche in looking at religion. So in one sense, religion was not something to be discarded; it was something to be reformed. It was something from which you could pick common-sense, good principles, and codify them and discard what was supernatural.

In colonial India, there are some very distinct decisions. I mean, two of them being, I think it was Waryam Singh v. Emperor and Bonda Kui v. Emperor. These were the two decisions which are about how the law would treat you if the person you killed happened to be a ghost, right? So the colonial law was approaching it as, “Also, this is native superstition. How do we deal with them? We’ll deal with them sympathetically because they don’t know better.” So a lot of this colonial superiority also came from a rejection of tradition. And we know that the conversation between modernity and tradition very often takes place on the body of the woman. So be it a conversation around sati, when the British were kind of trying to get rid of sati and say that this is no longer legal, the Indian response to sati was, on the one hand, “Yes, this is not true Hinduism, so we should definitely…”—this is Raja Ram Mohan Roy’s letters to the government where he said that this is not true Hinduism and therefore sati should not exist. And there is the other kind of a revivalist, you know, response to this which says that no, sati is something that is central to Hinduism and therefore you shouldn’t interfere in tradition.

So these two responses in postcolonial India would of course be slightly different because in postcolonial India, it’s not as straightforwardly a conversation between British men and Indian men on the fate of Indian women. Indian women do kind of, within the 1950s, because of the conversation around the Hindu Code Bill and the presence of the AIWC and other such bodies, they are kind of having a conversation with the government about law reform. But at the same time, some of the tropes still carry. So for instance, post-independence, the Indian courts as well as the Indian Parliament, Indians in general, are still dealing with cases of deaths of women. This could be over sati, which didn’t disappear after independence. It could be over accusations of witchcraft, but most commonly it was because of dowry. Women were dying for various reasons before and after independence, and the way in which the state was responding to it may be mildly different. For dowry, there were very specific legislations and conversations that happened. For sati again, there were big movements and small ones, but sati didn’t disappear immediately upon independence.

For spirit possession, we don’t see legislation until much later. Because spirit possession was something that nobody wanted to acknowledge was still happening, right? It was supposed to be this practice that doesn’t happen in urban areas because it doesn’t happen to educated people. So it was something that the postcolonial state is not engaging in immediately upon independence. But nevertheless, I mean, there is also, one could say, a conversation about whether the category of “supernatural” itself is Western. So I don’t get into this in the current paper, like in the paper that I’m currently writing, but of course, it’s still, you know, using terms like spirit possession and, you know, demons and black magic relatedly but not interchangeably. But postcolonial categorizations of witch-hunting don’t come in until the 2000s. So it’s only in 2000 that, you know, Odisha, Jharkhand, these states were kind of having a conversation around it. Before then, sati is still a bit mainstream, but nobody wants to talk about the fact that women are also being accused of being witches and being killed. So which is why I don’t see the moment of independence as a massive rupture. So that rupture doesn’t necessarily take place, which is why it is so understudied in the legal sense. Right? This conversation around spirit possession has been the preserve of anthropology, psychiatry, medicine, even, but not law. So it’s only now that we’re seeing more conversations around it.

Jairaj Singh Basur

Now, we’ll move on to a set of questions based on specific cases. The first case for our discussion today is State of Orissa v. Ram Bahadur Thapa. The first question for this case is, Professor, could you briefly set the scene for this case? What were specifically the central facts that brought this case before the Court, particularly those involving allegations or beliefs related to spirit possession?

Saumya Saxena

Ram Bahadur Thapa is such an interesting case. I’ll tell it like a story, and then we can see where the law is involved in it. Because in the case itself, it is narrated like a story; when I was reading it, it didn’t feel like it was a legal document at all until the very end where they actually get into, you know, why this person was not convicted and so on and so forth. So basically, in 1958, there was a man called Ram Bahadur Thapa. Now he was—as the case mentioned—he was a servant or helper of this other person who was working in Calcutta. And this person was contemplating buying aero scrap. And in order to sort of make the bid and to assess the materials, he moved to this remote village called Rasgovindpur in the Balasore district of Orissa. He was visiting the site, inspecting it to figure out—it was an abandoned aerodrome—so he was wondering what aero scrap he might use for his business, and so on and so forth. And some of it might have had great resale commercial value. So he was assessing this area.

Now, he was staying near this village, but this aerodrome had acquired this notoriety about being haunted. And again, the judgment says that the area was inhabited by Santhals and Manjhis (tribal communities), both communities had a very firm belief in the supernatural and in ghosts, and they believed that the aerodrome was haunted and completely “infested by ghosts”. So Ram Bahadur Thapa is, of course, he’s an employee, he’s accompanying his employer and they’re assessing this scrap. And they’re very excited by the rumors around this aerodrome. So in the middle of the night, they’re just having tea at a tea stall. They’re also accompanied by their landlord. So they were living in a place near the village and the landlord, whose name is Patro, is also quite excited by these rumors. And at one point, it was their idea to start exploring or go near the forest because they were excited by the idea of encountering ghosts.

Now, this is when things become a little interesting because on their way back, they took a footpath along the aerodrome where they saw flickering lights in the distance. To add to the setting—and this I quote from the judgment, it sounds like a story, but it really is the judgment—”to add to the setting, strong winds blew through the area and they made the ordinary flickering light look like will-o’-the-wisps.” Now, will-o’-the-wisp, as you know, is like a flame-like phosphorescence which is generally emitted in marshy areas, caused because of decaying plants. But in literature and in folklore, this has a history of being associated with danger or even death because it’s said to lure unsuspecting travelers into the marshes.

Now, the trio—this is the employer, Ram Bahadur Thapa, and Patro, who’s the landlord—they’re kind of walking alongside this path where they see what they believe are apparitions around this light, and they put it down to being ghosts dancing around the fire. Instead of running away from it, for some reason, they run towards it because they’re really intrigued by the idea that they might be encountering ghosts. Thapa was the first one to reach, and Ram Bahadur Thapa—this is relevant later—is a Nepali man, as one might be able to tell from his name. So he reached out with his khukri. Now, a khukri is also a small, you could say, pocket knife which is quite closely associated with Nepali identity and that stereotype. And he began to indiscriminately attack who he thought were ghosts.

The only established piece of evidence was that all individuals involved were obsessed with the idea of ghosts. The figures spotted moving around the flickering light were suspected to be ghosts by Ram Bahadur Thapa. And once he began to attack them, it was only in his zeal to kill the ghosts that he also managed to attack the landlord, Patro. And then Patro screamed. This is when Ram Bahadur Thapa is kind of brought back to his senses. So this is to say that he was not in his senses before. He was brought back to his senses when Patro screamed because he was injured. And this is when he realizes that actually the people he was indiscriminately hurting were Manjhi women who were simply performing a morning ritual, and they were the inhabitants of this village.

Thus, the court says, relying on section 79 of the Indian Penal Code, 1860, which states that an act is not considered an offence if it was done by someone who was justified by law or who believed they were justified by law due to a mistake of fact. So for this attack, even though Thapa was charged with murder section 302 under IPC, he was also charged with 324 causing grievous hurt or hurt, and the Sessions court judge acquitted him of all charges on the grounds that these acts were committed under a bonafide mistake of fact, thinking that he was attacking ghosts and not humans. Waryam Singh vs. Emperor is also a precedent which is about what should happen when the person you’re attacking – you think them to be ghosts. Now the court here actually takes a very sympathetic view of Ram Bahadur Thapa’s situation; which could happen because of various reasons, but their own reasons were that he was a newcomer. He was not familiar with the region, with the region at all, so he was a newcomer here. He did not know that there was a rumour about this place being haunted. He was not accustomed to it. He was probably overwhelmed by it. The Court also reiterated that the aerodrome was in general meant to be haunted, but particularly haunted on Tuesdays and Saturdays, which was one of the days on which this incident occurred. All these factors were used as mitigating factors in favour of Thapa to ultimately decide that he had not killed knowingly. He had killed who he thought was a ghost. Another thing that the court observes is that in the status and intellectual attainments of the respondent, the place and time of circumstance; it would not be proper to expect that a “Nepali” should have paused and examined. So maybe if an Indian was expected to do it, but the fact that he was Nepali was also a factor in this judgement. It was not proper for us to expect that a Nepali should have paused and examined carefully whether the person’s moving around were human figures or not. The court also goes on to say that he was not corrected by people who were better educated than him, like Patro and like his employer. So they didn’t make any effort to educate him. So he was not somebody necessarily of unsound mind. So they don’t use 84, they just use 79 to basically say that he was somebody who thought that these things that these people were ghosts. And in this case one woman had died, two were severely injured. But you know it, it is for us to think about whether if these women were upper caste urban women would the Court have responded similarly? Are the lives of women who are tribal, who are anyway on the peripheries of the society and of this village, were their lives basically of less significance? Would similar sympathy basically have also accrued to somebody else in Thapa’s position?

But the reason why this case was interesting was because of the way in which these translations have taken place. So he was Nepali, he was not somebody as educated, educated people around him didn’t tell him any better. So this was kind of the story that unfolded, and he was ultimately acquitted of all charges.

Jairaj Singh Basur

How did the defence in this case attempt to leverage the concept of spirit possession? Specifically, how was the argument framed around the legal defences of insanity – Section 84 IPC, which is now section 32 of the BNS; or mistake of fact – which is section 76/79, now 14/17.

Saumya Saxena

They couldn’t prove that he was insane, in the sense that he was somebody who was maybe not in his senses at the moment; but there is also, I think, an understanding of lowered cognitive capacity. So he was not insane or a person of unsound mind generally, because that would, I think, entail greater proof, psychiatric opinions and things like that. So none of that was necessarily required because this person did not necessarily try to evade conviction or run away or anything. Incapacity to understand is a little bit different from unsoundness.

And so the case was really built around mistake of fact, and that is also what makes it really interesting for me, because it seems like the threshold is then quite simple. One could simply claim that they were superstitious, they didn’t know better, and then that becomes one of the ways in which you know, you manage to evade conviction.

So he was mistaken, he was not insane, that is what they based the defence on.

Jairaj Singh Basur

From a legal history perspective, what precedent or significant interpretation did the judgement offer regarding the interface of traditional belief about the supernatural with established criminal law defences, like insanity or mistake of fact, in early postcolonial India.

Saumya Saxena

So there has always been in India a tremendous interface between traditional beliefs and the law, right? So even post independence, our secularism was not necessarily about a separation of state and religion, as one may understand it in the sense of Western jurisdictions and how they do it, but in India, it was always about management of religion. It was not just a question of personal law, where law is being codified, but you take temple entry movements, right? So everything was about a negotiation with religion or negotiation with tradition. One can say the temple entry, how much of it is about caste? How much of it is about tradition? And how much of it is really about religion? Right.

So in India, secularism was always about management of religion. I say this because I don’t see Ram Bahadur Tapa from a lawyer’s perspective, because I’m not one. So from a legal history perspective, particular judgments or significant legislation is what I’m trying to decenter from; because what I’m trying to show is kind of a long duree of Indian history, where we study how the state responds to questions of tradition, questions of gender, questions of spirit possession. Rama Bahadur Thapa in one sense is not a significant decision, because in a lot of ways it fits in with what was happening in colonial India and what continues to happen with post independence and in contemporary cases. So I suppose my persuasion here is to understand how much relief can belief afford you?

So crime without intent, crime committed in an unsound state of mind or crime due to mistake of fact, has one more ally, and this ally is called grave and sudden provocation. The point that I’m making is to actually link all of these defences, to have a conversation around what are your bargains when you’re making a case for leniency and punishment, and there is a ghost involved?

So grave and sudden provocation, I want to talk a little bit about this in the context of insanity and mistake of fact, because in one sense this is another way in which you reduce murder sentences to, you know, culpable homicide, right? It’s very commonly used to say that, oh, it was grave and sudden provocation, and therefore it’s not murder, it is culpable homicide, and it was most common in adultery cases.

So here I want to take an example from Alastair McClure’s cases on criminal trials from Colonial India. So he works on the 18th-19th century period and he’s looking at this defence, which is also called the mercy for an unreasonable man. And this will kind of tie in with what you just asked about mistake of fact. So McClure talks about the mercy for an unreasonable man – who is a man who claims the cultural defence – culpable homicide is not amounting to murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of a person who gave him that provocation or causes the death of any other person by mistake or accident.

He talks about a man called Mohan who murdered his wife on suspicion of adultery and to this the court responds, natives of this country in cases of this description, appear to be generally unable to exercise control over themselves, that Europeans usually succeed in doing. So now you see the parallel with Thapa right? Nepali, we can’t expect him to have known better, maybe, perhaps Indians would have known better. So there’s like, not so subtle racism built into, adjudicating such cases. Second, the court continues, the prisoner, moreover, is an ignorant man. So again parallels with Thapa, where Thapa was considered somebody who was mistaken because he was an ignorant man, he didn’t know better, right? So in this case husbands were not the only beneficiaries. They’re not the only best beneficiaries in this process, but what began as loosening of the adultery defence in the colonial context also grew into a broader tolerance of all male family members’ right to violently police female sexuality within the household.

Another case that McClure talks about is from 1896. This is the case of Chunni, who once comes home late at night to find his sister having an illicit connection with another man. He had heard rumours about this man having an affair with his sister, but he had never actually actively witnessed it. Having seen them together in the act of intimacy, he picked up a nearby ghandasa or a blade and he killed them both. The Sessions Court found Chunni guilty of murder. However, on appeal to the High Court, the Court considers this case and wonders whether it might fall within the exception. Here, the judges explain that there was a clear distinction in the degree of provocation between a case like this, and the provocation that is felt by a husband who finds his wife in the act of adultery. However, they noted English law was very strict in the matter, but they conceded that the dishonouring nature of his sister’s actions to the family constituted a very grave provocation. So they’re trying to kind of accept the cultural defence and be like, you know, we know this is hard for you lot, we know that this is a huge matter of shame for you. The English law is very strict on the matter, but they found Chunni guilty of culpable homicide not amounting to murder and sentenced him to rigorous imprisonment instead of death, which was the punishment for murder at the time.

So the general trend here that I want to emphasise in this is that emotions of men very often through these legal provisions like mistake of fact, grave and sudden provocation, are more easily accommodated than transgressions of women. So women transgressing and that provoking a man to action or anger is a situation where the court will be like, oh, we understand this must have been a grave matter of shame or anger or fear for the man. But the woman who transgressed, who was with another man, or who was committing adultery, that is given relatively less sympathy. Which is why it is not about isolating Ram Bahadur Thapa as a case, but what it necessarily stands for which is the way in which the Court, through various cases, is accommodating the emotions of men over transgressions of women.

Aastha Nayak

So moving on to the next case we will be discussing, which is Madan Singh vs State of Rajasthan. Professor, could you briefly outline the factual background of the case for our listeners, particularly highlighting how the element of spirit possession came into play and by whom it was alleged?

Saumya Saxena

Ok, so Madan Singh doesn’t compare quite directly with this. In terms of the invocation of the supernatural, it doesn’t happen in the case of Madan Singh itself. The reason why they compare is because in cases of sati, just like in the cases of spirit possession and witch branding, very often it’s very difficult to make a conviction. So even in Madan Singh, initially after the case of Roop Kanwar, and after she committed or was made to commit Sati, there were thousands of people who witnessed, 45 people initially accused, 12 people acquitted, then 12 people later accused again also all acquitted and ultimately till date there is no one convicted. Now this was for very different legal reasons. This was because the pyre was lit by the younger brother of the deceased and he was a minor at the time so he could not be convicted. Another reason why there wasn’t conviction is because, it was basically an argument about whether it was murder or abetment to suicide. And while abetment to suicide could be proven, murder could not. And because they kept alleging murder for various reasons nobody was convicted in this case.

The reason why Sati compares to cases of witch branding is because, in one sense, the broad argument here is that no one killed the goddesses because, in the moment of sati, the woman is kind of elevated to a position of being a goddess. In local terms, it’s very often called ‘sat charhjana’ or being possessed by ‘sat’ or truth. So no one killed the goddess, and too many killed the witches, again, it’s difficult to make a conviction. And that is how Sati and witch branding somewhat compare.

In both such cases there is a conversation around how do you make conviction when the responsibility for the crime is so decentralised, right? So in one sense, they both entail rituals and it’s very theatrical. It’s always been since 17th century European witch hunts where women were burnt at stake to Sati, where women are burnt at the funeral pyre. The events surrounding both these incidents tend to be that there was some magic involved. Vaid and Sangari have a paper on this – they talk about how miracles are invoked, so henna or ‘mehndi’ appeared on the hands of the woman magically, nobody applied it, it just came out of nowhere. So these are the narratives that lead to Sati.

This is the reason why conviction doesn’t take place, because when you ask witnesses about what they saw, they say, nobody really put any fire or oil on the pyre, the woman was just sitting there and there was this spontaneous combustion. Because that is what magic does, that is what faith does. It blurs out evidence, it makes witness testimonies irrelevant. Because what you want to believe in is magic.

Other cases were about how the woman flew to the funeral pyre of her husband, and there was nobody who assisted her, even though it was 12 feet above the ground. In Roop Kanwar’s case, she was drugged most likely – and that is what the investigation found – that she was drugged before she was taken, but yet no one gets convicted.

So that kind of makes Madan Singh comparable with the rest of the cases that I’m talking about. But in the sense that it’s dealing with Sati, not necessarily in terms of what its legal findings are. It doesn’t make conviction and that makes it comparable to sati cases.

Aastha Nayak

Given the broader theme of ‘Ghost in the Courtroom’, what does the Madan Singh case reveal about the judiciary’s approach to tradition versus modernity, when confronted with supernatural belief in the legal setting in the late 1980s? Particularly from a legal history perspective, how does Madan Singh fit into the evolving jurisprudence on mental state and culpability in Indian law, especially when traditional beliefs about possession are introduced as a factor.

Saumya Saxena

To answer this question, I’ll lay a bit of the background about the way in which the case actually took place and what was going on locally. So in Deorala, Rajasthan, there was this 17/19 year old woman who was made to accompany her husband to his funeral pyre and burnt along with him. The case was initially reported in an obscure daily newspaper, but later on it was only when the English Daily Indian Express picked it up that it became of national relevance and national importance. Three local women’s organisations (and Kavita Srivastava writes about) in 1987, these local women’s organisations start talking about how this needs to be stopped. And one of the local women opened a local government school, they opened its premises to conversations around what to do to curb it, because Sati had been taking place, this just became a bigger case.

But Sati, which was what I was previously working on, in post colonial India it did occur. And it occurred as frequently as one case of Sati per year in the 1950s and 60s and slowly tapers towards the 70s. But in 87 when it takes place, the National Federation of Women takes it up. The local women’s bodies in Rajasthan are very active and they seek a meeting with the local CM and they say that we need to have a conversation around why these cases are still occurring. Now, significantly, this meeting only lasts for two minutes, and this meeting is then followed by the Chief Minister’s meeting with another body of Rajput youths who are speaking in defence of Sati. So on the one hand, there is the National Federation of Women which is galvanising, you know, women in different parts of India and they are being sort of treated as elitist or Western by the local bodies such as Satidharm Raksha Samiti. Radha Kumar also works on this, she demonstrates with images in a very interesting way about how these two organisations are clashing. And normally you would think this is so straightforward, of course everybody would be against it, but that wasn’t the case.

Now, to what extent you also talk about, you know, whether tradition, modernity, where does it fit? When we apply the tradition-modernity trope, you would think that in colonial India there was a religious defence for Sati, right? That doesn’t happen in the Roop Kanwar case, that doesn’t happen in 1987. Because the Arya Samajis, a lot of religious leaders are at this point trying to distance Hinduism from Sati. So you could say it’s a conversation around salvaging religion rather than salvaging the woman, but it’s about salvaging religion and saying that, look, Sati was not a part of our…so a very Ram Mohan Roy kind of argument, but it’s been made in a very distinctly modern context.

The reason why this case becomes what it does is because the National Federation for Women, along with a bunch of other feminist organisations working from Delhi, Jaipur, elsewhere in the country, want to get an order passed against celebration of a Chunnari Mohatsav. Chunnari Mohatsav is basically a way to celebrate the sati, and this is when Sati turns very deeply modern and you could say there’s a certain market for sati, because in this mohatsav there are pictures of Roop Kanwar and Mal Singh which are being sold on chunnaries. So there is economic value in celebrating Sati. There’s a whole market around her images, her chunnaries, bangles are being sold, all sorts of symbols of matrimony are being sold because technically she died before becoming a widow. She died with her husband. So there was a certain economy around Sati which provoked the state to respond to the glorification aspect of it, and this is why it’s distinct from other cases of Sati.

Because glorification is really what the problem was. Because this kind of a Chunnari Mohatsav was, in one sense, glorifying it. And why was it important to criminalise glorification because in cases before Roop Kanwar’s case, there was a case, for instance, of Sugan Kanwar. I’ll briefly tell you about it because it’s interesting, but I won’t go too deep into it, but Sugan Kanwar’s case is important because in this case there was no prevention of this Chunnari Mohatsav. There were lakhs of people visiting her shrine. There were lakhs of people claiming that miracles are taking place at the shrine – at the place where this woman committed sati. So how is supernatural relevant to it?

Because the narrative becomes not just about the death of the man, but the sacrifice of the woman, because the sacrifice is so grand and it’s such a spectacle she becomes almost a goddess. And how is her godly status kind of made sacred? By building a temple. So once you build a temple around it, disseminative ideologies can be formed. Disseminative ideologies will create this idea of superstition and of miracles. And then people started claiming that, “Oh, when we go to the shrine, my eyesight was cured, or I was suffering from cancer and that went away.” Then in Sugan Kanwar’s case, which was in the 1960s, the local Raja in Rajasthan wanted to go – so again you see this problem between the state and the local narrative, because the police was at this point meant to be spreading literature to prevent sati. But the police also had to make arrangements for the Raja to be able to visit the site of the Sati. So when there is such local faith and belief in the fact that this was a grand sacrifice, and you can’t manage to prevent the glorification, even the state mechanisms, even the courts and the police apparatus and the lawmaking doesn’t know what to do with it. So in Madan Singh, the reason why that becomes significant is because after Roop Kanwar, the glorification is criminalised and once you can’t glorify it…to go back to also about what makes it supernatural, what makes it eerie… was because the court said you can’t glorify it, So there was no temple dedicated to Roop Kanwar. But Namita Goswami and Paul Courtwright, have a really interesting essay on what happens when they visit this site in Deorala.

Because the temple construction was prevented, the area kind of acquired this eerie kind of a feel because it was about a death that never got commemorated. So because the death was not commemorated even till date, there’s like a makeshift shrine for Roop Kanwar over there. But when you can’t commemorate a death, the disseminative ideologies cannot form, and that was the only way to prevent its glorification. Now, this did two things. One thing was that the godly status that the woman was attributed when she became Sati or when she became a goddess, her powers to bless and curse had to be ruptured by the state in order to make her arrest possible. So after 1987, the woman herself is liable to arrest, right? That is what the new law stated. And once you have that kind of a law in place, you have to make sure that this woman was actually not painted as a goddess in local settings.

So in that sense, the Roop Kanwar case became really significant because it criminalised glorification. But it also made conviction difficult because if everything is glorification, how do you report a crime in sati? By virtue of becoming an onlooker, you’re becoming complicit because you’re, let’s say, if I take a video recording of a sati and then I say tell the police that look, I saw this, disseminating that video could also be glorification. So how do you then convict? So it didn’t address the problems legally, but it did really tackle the question of glorification.

Of course, it was not quite tackled because then you have movies like Padmavat and so on and so forth, which again bring up this question. But this was really about taking away the godly status of the woman in order to make criminal law apply, because before that it was becoming such a big spectacle and sati had such a grand economy to it that conviction was becoming extremely difficult.

Aastha Nayak

Considering that your abstract mentions gender and vulnerable groups, were there any specific gender dynamics or vulnerabilities evident in the Madan Singh case related to the possession claims or the individuals involved? And how does the court address or overlook them?

Saumya Saxena

The big case on vulnerabilities, which made me think about vulnerabilities differently, is actually not Madan Singh but Tej Singh, which happened in 1967/69. So this case is when vulnerabilities start to shift.

In the case of British India, broadly there was this understanding that the Bengal sati is because women are being compelled, and the Rajasthan Satis is when women are committing it voluntarily. So it is the British who make this distinction between voluntary and involuntary sati. So some satis are more vulnerable than others in the British understanding of things, because they’re saying some women are being compelled to do it. But if women are happily doing it, then they’re not as vulnerable. So the first idea of how do you create vulnerability on the question of Sati; the tone is being set by how the British are choosing to look at it. Of course they don’t factor in that, even if women are doing it voluntarily, what kind of pressures and incidents are leading them to do it? So of course it’s not no answer at all, but this voluntary/involuntary Sati trope is what the British are giving us. Post independence it’s supposed to be something that is bad generally; you’re on the one hand codifying Hindu law trying to introduce divorce, give women property rights and so on and so forth; so Sati doesn’t sit well in it. Because you know – the obvious connection of sati with property. Of course if the widow doesn’t succeed the man, the motivation behind Sati was that the widow shouldn’t succeed the man and therefore she doesn’t inherit property. And once you give women property rights the State suddenly can’t be sympathetic to Sati. They really have to deal with it, as though it’s a bad practice. Now, this is the difference between Sati and other kinds of conversation around women being granted the right to divorce. Sati is so obviously criminal law that nobody supports it at any point in post independence conversations. How they locate vulnerability is here, caste is also a factor, upper caste women initially were more subject to it because divorce or separating or sati in general was less common with the individuals who were non Rajput and divorce was more common in individuals who were non Brahman. So in one sense you can say the vulnerability was also due to caste. You can also say that you know there was some copying of these rituals because in one sense Sati elevated a woman to a certain status – so if a woman of a different caste also committed sati that elevated her. So you can say that these vulnerabilities are also cast coded.

But what’s most interesting for me is how the vulnerabilities change post independence from being this vulnerable “woman in need of saving” to the “helpless police officers” who are unable to prevent the sati. The problem was that the postcolonial state was not convicting people for committing the crime of sati, right, which is why sati is relevant to somebody like me who’s working on lack of conviction due to godly influences. In a lot of sati cases that I read from the beginning of the 60s, up until 1987, were about how the police did everything in their capacity but they were outnumbered by the crowd. The police did everything in their capacity, but the woman was dragged by her relatives. So in one sense, the vulnerability shifts from the insane woman who was drugged or provoked by her family to commit this, to the incapacity of the state – the state just couldn’t help it. The state deploys this incapacity argument in various ways.

So in terms of bureaucracy, Akhil Gupta and others have made a similar argument but it was very interesting for me to see that, oh, these helpless police officers…in Tej Singh, they’re relying on the testimony of this police officer who said that I couldn’t actually go there because there were just too many people surrounding the pyre. I was standing on top of a hill and I was viewing it. But even though I was standing on top of the hill, I knew exactly who the 12 people were who were responsible for the sati. The court then says, ok, we’re going to rely on your testimony because you have no reason to lie. The case was very complicated because the sessions court actually said this is unreliable testimony. But then the High Court said that no, will rely on your testimony. But this vulnerability and how it shifts from this woman who is vulnerable because she’s being pushed, now in order for this vulnerability to shift to the police, the woman has to become insane. So in a lot of the 2000s cases, which is the Kutubai case that takes place in 2005 in Madhya Pradesh, here they’re trying to really remove her from the godly status and say that look, this was this insane woman, and you know she wanted to do it anyway. She didn’t even live with her husband. She still went and committed Sati. Because they are not able to convict people. They’re not able to convict this woman’s sons even though they were initially arrested, but then they were let off because of lack of evidence and because there is such sustained lack of evidence it becomes a conversation about how police did everything they could. In the Madhya Pradesh case, the police, which is responsible for disseminating sort of materials for preventing sati, is also going to the local shrine and touching the ground to their heads. So there is faith that even local police is showing in these spectacles. So in one sense, it’s very hard to address something of this sort, because it’s believing citizens who are implementing rational law. That’s where the vulnerabilities question is interesting to me in matters of sati.

Jairaj Singh Basur

We’ll now move to our next case, which is Kusum Mondal vs Madhuri Mondal. Professor, could you briefly outline the facts of this case, particularly focusing on the brutal circumstances which were initially attributed to a ghost?

Saumya Saxena

Madhuri mandal, it was claimed, was killed by a ghost and it was a very brutal murder in the sense that her eyes were gouged out of their sockets. There were lacerations all over her body, particularly her neck. Her mutilated body was also found under a banana tree, which was in a garden adjoining her matrimonial home. The investigation revealed that Madhuri had also been subject to violent abuse by her in-laws over a family property dispute. So the problem was that there was a piece of land that her husband was meant to inherit, and she wanted only her husband to inherit it. But her in-laws wanted that piece of land to be shared between all the siblings and other brothers of her husband. And this had led to a significant amount of turmoil within the family.

This was a case where a lot of the prime accused also fled, but basically the argument was that there was such grievous harm to the body, there was such cruelty with which the body had been murdered, that they alleged that this could only have been the work of a ghost. No human could have inflicted such harm on another person’s body.

And as a consequence of this, what turns this case is that it was decided on the basis of insufficient evidence. The ghost story was relevant to the extent that of course, the local narrative, when there was no conviction because of lack of evidence (of course, legally, it couldn’t be proven beyond reasonable doubt that the husband’s family were involved, even though they had fled, and so on and so forth), it fueled the local narrative that a ghost could have committed this crime because there was no conviction. It kind of works both ways – so there’s no conviction because there is such brutality only a ghost would have done it, and because there is no conviction, only a ghost could have done it because the police never found anyone. So that was the Madhuri Mondal case, broadly.

Jairaj Singh Basur

Since the case itself was determined on lack of evidence, particularly with the witnesses turning hostile, what role could the attribution to ghosts have played in the proceedings of the case?

Saumya Saxena

So this is interesting because the way in which I’ve used Madhuri Mondal is actually in connection to a lot of other cases where there are similar situations (not exactly similar), in one case, the woman is accused of being a ghost, in another case she may be killed by a ghost, but nevertheless the gamut of cases forward these cases forward the idea that ambiguity that supernatural generates in a lot of these cases because of ghosts or because of, accusations of witches, witchcraft and so on and so forth. It frequently tends to work against women.

Now Madhuri Mondal’s case I’ve just described, so I’ll move on to the next one, which I’ve discussed in a similar context, which is the case of Mala, who was married to Hemant Kumar. Both of these cases are from the 2000s. So in Mala’s case she was found in a matrimonial home having committed suicide by hanging herself from the ceiling of the house days after. Days after her death, her father lodged a complaint, saying that her in laws and her husband had had provoked her suicide because of dowry harassment. Now her body had to be exhumed four days later because of this investigation and her in-laws alleged that she was actually possessed by a ghost and that’s what was making her ill. Now it was making her ill, it was making her dysfunctional, and apparently her husband’s side of the family had taken her to multiple temple visits over the years in order to exorcise her from the ghost. Now the way in which this case was ultimately decided was when the Karnataka High Court says that clearly this woman was suffering from a mental health issue and dowdy harassment cannot be proven beyond reasonable doubt. Mala had earlier informed her family that she received unsolicited phone calls. And all of this simply shows that she was under severe depression, had a strong belief in ghosts, that she was haunted by a spirit or a ghost, or somebody that makes telephone calls to her frequently. The Karnataka High Court acquitted all accused.

Now this case is only relevant here because what I’m trying to show is that, whether you were killed by a ghost or whether you yourself were possessed by one leading to your death, how frequently charges of dowry harassment are dropped. And this is just, you know, a minuscule number of cases – there are so many that suggest very similar findings – and I’m not trying to say that all cases of dowry harassment are closed the minute you introduce an element of the supernatural. That doesn’t happen, but the threshold for punishing somebody for a case of dowry harassment is very high, so you really have to prove it to say that; even the smallest element of supernatural, smallest element of ambiguity, can have the case go completely against you.

One more example I will take in this and then I’ll stop at that. So another example again is the case from 1962. It’s the Dahyabai Chhaganlal Thakker case where a woman had been murdered by her husband. The lower court had convicted him of murdering his wife, but upon appeal to the High Court, the lawyers introduced the plea of insanity. They said that the man in question had appeared confused. He said very strange things, as though he was haunted, and while holding the murder weapon, which was a bloody knife, that he had used to stab his wife 44 times. He claimed that he did not know what he was doing and he kept saying random stuff out of anger. And that is why this was a plea of insanity that was admitted. Now in this case, the court convicts him. But again, the court manages to convict him because this man had written in a letter to this woman’s father, to his father-in-law, that he does not like his daughter and he’s going to return her daughter. And it was a series of written pieces of evidence that suggested that this man was trying to get rid of this woman and therefore his case became a very easy conviction and the plea of insanity was thrown out because they said that, no, you’ve said this in your sane mind, you’ve written it out. You’ve said it to people. You’ve said it to friends. You’ve said it to her father, so on and so forth.

So all of this to basically suggest that the threshold is too high for women to really prove that there was some harassment in order to have their in-laws or husbands arrested. And these are just three out of a whole bunch of cases that indicate a similar argument. All of this to again indicate that the broader argument here is the transgressions of women are not accommodated, whereas emotions of men or if men are alleging superstition are quite easily accepted. They’re tropes that are easily accepted as defenses in a bunch of cases, particularly in matrimonial disputes.

Another example, if I may add just very quickly like what happens when the law actually does favour the woman. So this is  a case from 2000. By this point in Jharkhand, there is a law against witch hunting. This is the case of Durga Mahto, where this newly married woman was being harassed by a strong man in the village (an upper caste strongman) in the village, who was compelling her to enter into an intimate relationship with him. And when she declined it, she was accused of becoming a witch, and when she was accused of being a witch, she was tortured, beaten and thrown into a temple complex, because she was technically a witch. Now in this case the anti-witch hunting laws did come into action, so the accused people were arrested and this woman was saved from that family. Having said that, this did not significantly improve the conditions for Durga Mahto at all because she still was isolated from the village, she still couldn’t draw water from the well, and she still had a lot of people who were treating her as a pariah, and were not touching her or going near her. So even when the law exists, and even when the law is very actively in favour of women, very often they will remain on the receiving end of things because in one sense, cultural patriarchy is allied with legal patriarchy. It finds an ally in the state patriarchy that we witness in any other conversation – like we started this conversation with how in divorce, dowry, domestic violence cases also, women have to prove that they were good women. So the incidents or the behaviours that led to women being recognised as a ghost become really significant and therefore women always have to be great wives, loving mothers in order for them to gain sympathy of the courts.

Jairaj Singh Basur

We will now move to the final question for our podcast today. What are some of the key takeaways you hope policy makers or legal professionals would glean from understanding how courts deal with evidence of the supernatural? Looking forward, what changes, if any, do you think are needed in the legal system or in public discourse to better navigate the complex intersection of law, belief and lived experiences in India?

Saumya Saxena

This is an interesting question for me in particular, because as a historian, I find myself very unburdened to find solutions because I’m all about the contextualising and the understanding, but not necessarily about how it could be addressed. Because what I see this as is actually how courts…this could potentially help in the kind of laws that they’re contemplating now because they have anti-witch hunting laws in a bunch of states in India now research Jharkhand, Madhya Pradesh. But for me the real merit is in acknowledging the fact that courts are operating in a deeply cultural context. And in one sense, in instances of possession, the more resilient patriarchal or misogynistic tropes of family and social behaviours tend to get the sympathy of the law. So addressing that, not just looking at the judgement but looking at the thinking of the judge in reaching certain conclusions…because again, they’re all deploying the law, they’re all deploying legal, rational law and still not managing to benefit women. So it’s not so much about a legislative or a legal solution to the problem. It is about acknowledging that even in a solution that is perfectly legal there is a certain misogyny that the decision might carry. In cases of crimes involving magic, where culpability is even harder to establish, this affects the way in which conviction will take place, the way in which sentencing will take place, and the legislation itself.

So in both magic or madness, culturally and legally, not only do magic and madness both rely on social stereotypes, they also generate them, they also create them and perpetuate them. So we actually have to look at the misogyny in magic, or the misogyny in our understanding of mental illness or how we accuse women of mental illness. So the broader conversation could also be thinking about, you know, grounds for mental insanity as a grounds for divorce and so on and so forth, and how many women are actually accused of it in negotiating divorces.

Very often we also have to look at the fact that one of the reasons why these cases are occurring is because individuals are trying to punish transgressions of women. So very often, women who are accused of possession (and the evidence of this is from anthropology) very often will be women who have entered inter-caste relationships, or who’ve married against the will of their parents. So Clarinda Still has an excellent case study on this where she shows that this woman, Leela, is supposed to be this educated woman, a young woman who holds a lot of promise. Her parents thought she’d make a great match, but she ends up falling in love with this random guy who they don’t approve of. And therefore her family accuses and actually organises a series of possessions for her in order to displace agency, in order to say that this wasn’t the work of Leela, this was the work of the possessing agent. So one of the ways in which possession takes place is it punishes women’s transgressions so that the transgressive behaviour can be attributed to somebody else.

What we would have to do in law is to actually get into the question of agency. Without getting into the question of agency, if you’re only going to say that, oh, mens rea, that’s not going to be easy to establish, then we’ll have a lot of people going without convictions.

The other way in which the law could benefit is by thinking a little bit more theoretically about where the law locates power and where the culture or the local locate the power. I say this because it’s important – in the sense that in law we could have a person who is accused of witchcraft, who is completely disempowered because they’re being treated as mentally ill or sick, whereas in a cultural context they can be hyperempowered because they’re treated as people or women who are in a position to bless or curse, and therefore they can be killed for it. But in the law because they’re treated as weak and people who are given to superstition, they could be protected for it. So who the law protects versus who the culture protects, and where law and culture are locating power, there needs to be a conversation between them.

Finally, the thing to remember is that the fear of the unexplained plays out in the body of the woman in a very specific way and in adjudicating it, we witness cultural, religious, and state patriarchy operate in a parallel and an allied way, and that would be my take away in imagining future policy initiatives.

Aastha Nayak

Dr. Saumya Saxena, thank you so much for sharing your invaluable research and shedding light on this complex and underexplored intersection of law, gender, and belief. It has been a truly illuminating conversation.

Jairaj Singh Basur

This now brings us to the end of today’s podcast. On behalf of Law School Policy Review, I would like to thank Professor Saxena for joining us today and having this enlightening conversation with us.

Saumya Saxena

Thank you so much, I really enjoyed the questions. Thank you very much.