In Supreme Court of India
(2018) 7 SCC 192
AIR 2018 SC 1601
Shakti Vahini, an organization
Respondent No 1: Union of India
Respondent No 2: Ministry of Home Affairs
Respondent No 3: Ministry of Women & child Development
Date of Judgement
27 March 2018
(CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud
There has been a spate of honour killings in Haryana, Punjab and Western Uttar Pradesh. This has made it all the more essential to look into and deal with this fundamental problem as the existing law is not acting as a deterrent on the caste combinations and these illegal assemblies who consider them outside the pale of law. Any attempt to effectively tackle this socio-cultural phenomenon, embedded by superstition and authoritarianism, must look into the nature and magnitude of the problem, the adequacy of existing law, and the usage of penal and other measures of sanction to curb the power and conduct of caste combines. The socio-cultural outlook of the members of caste councils or Panchayats is such that they have minimal or scant regard for individual liberty and autonomy.”
To avert this, petitioner organization was authorized for conducting Research study on Honour killings in Haryana and Western Uttar Pradesh dated 22/12/2009 passed by the National Commission for Women.
Writ petition has been filed under Article 32 of the Constitution of India seeking directions to the respondents- the state and the central governments to take preventive steps to combat honour crimes, to submit a National & State Plan of action to curb crimes of the said nature and further to direct the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being. Also, prayers have been made to issue a writ of mandamus to the State Governments to launch prosecutions in each case of Honour killing and take appropriate measures so that all such honour crimes and embedded evil in the mindset of certain members of the society are dealt appropriately.
1. Whether an individual has a right to choose life partner of his/her choice?
2. Whether honour killings undertaken by khap panchayats are legal?
A) The actions which are found to be linked with honour based crimes are:
i) Loss of virginity outside marriage ii) Premarital pregnancy iii) Infidelity iv) Having unapproved relationships v) Refusing an arranged marriage vi) Asking for divorce vii) Demanding custody of children after divorce viii) Leaving the marital home without permission ix) Causing scandal or gossip in the community x) Falling victim to rape
B) Murder in day light and brutal treatment like beating, shaving of heads or putting the victims on fire in full public gaze of the members of the society reflect that the victims are treated as inanimate objects totally oblivious of the law of the land and absolutely unconcerned with the feelings of the victim who face such cruelty and eventually succumb to them.
C) The parallel law enforcement agencies consisting of leading men of a group having the same lineage or caste comprise themselves into an assembly and deal with the problems that affect the group in the manner they want to and nurture the feeling that their duty is sanctified and their action of punishing the hapless victims is inviolable. They are known by the names Panchayats or Khap Panchayats and try to adopt the chosen course of ‘more vigilantism’ and enforce their diktats by assuming to themselves the role of social or community guardians which have the power to punish for the crimes and direct for social boycott or killing by a mob. For them, it is the projected honour that rules supreme and the lives of others become subservient to their desires and decisions.
D) These extra constitutional Bodies which engage in feudalistic activities have no compunction to commit such crimes which are offences under the Indian Penal Code.
E) Article 21 which provides for protection of life and personal liberty and guard basic human rights and equality of status has not been taken care of by these bodies.
A) Honour Killings are treated as murder as defined under Section 300 of the IPC and punishable under Section 302 of the IPC. As the police and public order are state subjects under the Constitution, it is primarily the responsibility of the states to deal with honour killings
B) Central Government is engaging various States and Union Territories for considering a proposal to either amend the IPC or enact a separate legislation to address this menace.
C) Since the matter of the 242nd law commission report falls under list 3 i.e. Concurrent list of the seventh schedule to the Constitution of India, consultation with the governments of the states and UTs is a sine qua non for taking a policy decision in this regard.
D) Although some states have formed an action plan in the name in pursuance of the directions issued by this court, yet they have failed to effectively implement the same in letter and spirit.
E) And so effective guidelines to the police and law enforcement agencies to curb the menace of honour killing need to be formulated and implemented.
The trend of honour killing is on the increase and such killings have created a sense of fear amongst young people who intend to get married but are not able to enter into a wedlock out of fear. The social pressure and the consequent inhuman treatment by the core groups who arrogate to themselves the position of lawmakers and impose punishments which are extremely cruel instill immense fear that compels the victims to commit suicide or to suffer irreparably at the hands of these groups. The egoism in such groups getting support from similarly driven forces results in their becoming law into themselves. The violation of human rights and destruction of fundamental rights take place in the name of class honour or group right or perverse individual perception of honour. Such individual and individuals consider their behavior as justified leaning on the theory of socially sanctioned norms and the legitimacy of their functioning in the guise of ethicality of the community which results in vigilantism. The assembly or the collective defines honour from its own perception and describe it in a manner to give it a normative justification.
The concept of honour has many facets. Sometimes a young man can become the victim of honour killing or receive violent treatment at the hands of the family members of the girl when he has fallen in love or has entered into marriage. The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self sacrificing, having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive Honour.
This is an insidious practice of Khap Panchayats and it’s like of taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra ( belonging to the same gotra or pravara or different sub divisions of same caste) inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amount to flagrant violation of rule of law and invasion of personal liberty of the persons affected. Law has to be allowed to sustain by the law enforcement agencies. For example when a crime under IPC is committed, an assembly of people cannot impose the punishment. They have no authority. They can inform the police or lodge an FIR. They may also facilitate so that the accused is dealt with in accordance with law. But by putting forth a stand that they are creating awareness, they really can neither affect others’ fundamental rights nor cover up their own illegal acts. In fact it has to be condemned as an act abhorrent to law and, therefore has to stop. Their activities are to be stopped in entirety.
It is necessary to mention here that honour killing is not the singular type of offence associated with the action taken and verdict pronounced by the Khap Panchayats. It is a critical offence but it is not the only one. It is a just a part and specie of honour crime which is the genus, although a dangerous one. However, it can be stated without any fear of contradiction that any kind of torture or torment or ill-treatment in the name of honour that tantamounts to weakening of individiual’s right to choose relating to love and marriage by any assembly, by whatever name it stands, is illegal and cannot be allowed a moment of existence.
Court held that the assertion of choice is an insegregable facet of Liberty and Dignity. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. If liberty cannot be sustained, subject to constitutionally valid provisions of law, the life of a person becomes comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement.
If the right to express one’s own choice is obstructed, dignity cannot be thought of in its sanctified completeness. When two adults marry out of their own volition, they choose their path, they consummate their relationship, they have the right to do so and any infringement of the said right is a constitutional violation. These groups or assemblies which practice in majority in the name of class or elevated honour of clan cannot claim power, authority and final say to impose any punishment. The elders of the family or clan can never be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of their clan. The constitution and the laws of this country do not countenance such act and the whole activity is illegal and punishable as an offence under the criminal law.
Court referred to the 242nd report submitted by the Law Commission of India, namely “Prevention of interference with the freedom of matrimonial alliances (in the name of honour and tradition): A suggested legal framework.”
It stated that the words honour killings and honour crimes are being used loosely as convenient expressions and as more of a catch phrase rather than an apt or accurate expression to describe the incidents of violence and harassment caused to the young couple intended to marry or having married against the wishes of the community or family members. There are reports that drastic action including mental torture, infliction of or threats of severe bodily harm, wrongful confinement, persistent harassment and sometimes even murder is resorted to either by close relations or some third parties. It laid down various causes of this crime:
i) The belief that the victim has brought dishonour upon the family or the community
ii) Changing cultural and economic status of a woman and the woman going against their male dominated culture.
iii) In western cultures, honour killings often arise from women seeking greater independence and choosing their own way of life.
iv) Adulterous behavior of woman or premarital relationship or assertion of right to marry according to their choice.
It held that such violent crimes are directed especially against women. Men get attacked by members of the family of a woman with whom they are perceived to have an inappropriate relationship.
It further held that this evil is not peculiar to our country but haunts many other societies also. According to the UN commission on human rights, there have been honour killings in the nations of India, Israel, Italy, Morocco, Sweden , Turkey, Uganda, Bangladesh, Brazil, Ecuador and Western and gulf countries. It goes across cultures and religions.
Honour killing are condemned as a serious Human Rights Violation and are addressed by international institutions also. The council of Europe Convention on preventing and combating violence against women and domestic violence addresses the issue under article 42 which deals with unacceptable justifications for crimes including crimes committed in the name of honour.
The Law Commission had prepared a draft Bill in which it has stated that the idea underlying the provisions in the draft Bill is that there must be a threshold bar against group or assembly for the purpose of condemning the conduct of young persons of marriageable age marrying according to their choice, on the ground that they belong to the same gotra or they belong to different castes and communities. These groups often known by the name of Panchayat or caste elders have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law and they cannot create a risky and hostile situation in the village/locality concerned. The very assembly is made for an unlawful purpose i.e. objecting the marriage which is otherwise legitimate and within the bounds of law and their action should be treated as an offence as it endangers the lives and liberties of individuals concerned. Such assemblies does not have any regard for the life and liberty of others and such conduct shall be adequately tackled by penal law without any prejudice to the prosecution to be launched under the general penal law for the commission of offences including abetment and conspiracy.
Court further relied on several cases
In Lata Singh v. State of U.P, the court observed that there is no bar for inter-caste marriage under the Hindu Marriage Act or any other law. Court further held that this is a free and democratic country, and once a person becomes a major he or she can marry whosoever he /she likes. If such inter-caste or inter-religious marriage is not approved by the parents of the boy/girl, the maximum they can do is that they can cut-off social relations with the son or the daughter, but they do not have any authority to threaten or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. After so stating, the two-Judge Bench directed the administration/police authorities throughout the country to ensure that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple should not be subjected to harassment or threats or acts of violence by anyone and the one who is involved in such violence either by himself or at his instigation is prosecuted and criminal proceedings to be instituted by the police against such persons. These barbaric and shameful acts performed to protect the honour have nothing honourable about them but just represent the brutal and feudal mentality.
In Re: India Woman says Gang-raped on Orders of Village Court published in Business, court held that the State is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the State’s incapacity or inability to protect the fundamental rights of its citizens.
In Asha Ranjan v. State of Bihar and others, the Court noted that the choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of“class honour” or“group thinking” . It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion.
In Kartar Singh V. State of Punjab, the court held, Honour killing hinders individual liberty, freedom of choice and one’s own perception of choice. When two adults make arrive at a consensual decision to marry each other, it is an expression of their choice which is recognized under Articles 19 & 21 of the Constitution. Such a right is recognized under the constitution and hence needs to be protected from the illegitimate conception of class honour or group thinking. These intolerant groups who subscribe to the view of superiority class complex or higher clan cannot hinder the exercise of a fundamental right which is inherent in a person by relying on some self proclaimed moral or social philosophy.
Therefore for the sustenance of the legitimate rights of young couples or anyone associated with them and keeping in view the role of his court as the guardian and protector of the constitutional rights of the citizens and further to usher in an atmosphere where the fear to get into wedlock because of the threat of the collective is dispelled, it is necessary to issue directives to be followed by the law enforcement agencies and also to the various administrative authorities.
In Arumugam Servai vs. State of Tamil Nadu, the court directed the administration and police officials to take strong measures to prevent such atrocious acts. Further the State Government was directed to institute criminal proceedings against those responsible for the acts and to suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and charge sheet them and proceed against them if they do not a) prevent the incident from happening if it has not already occurred but having prior knowledge of it and b) if it has happened, they are not actively apprehending the culprits and others involved and institute criminal proceedings against them.
What we have stated hereinabove is that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock. Their consent has to be piously given primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. Law does not recognize these informal institutions to deliver justice. It is so since a polity governed by ‘Rule of Law’ only accepts determination of rights and violation thereof by the formal institutions set up for dealing with such situations. Rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, these Khap Panchayats or any Panchayat of any nomenclature cannot hinder the exercise of such right.
A larger societal change is required to curb such crimes in the long run. This is only possible through education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic condition of women, sensitisation of the police and other parties concerned towards the need for gender equality and it must be done with focus in areas where statistically there is a higher percentage of crimes against women.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje