Special law needed

Kirti Singh, legal convener of AIDWA.-R.V. MOORTHY

INDIA has a unique history of fighting social evils through legislation. Whether it is prevention of child marriage or sati, legislative measures initiated by Parliament in the wake of sustained campaign by social activists have paved the way for social reform. Although such interventions have faced stiff resistance initially, they have been accepted as necessary in due course.

Therefore, Union Home Minister P. Chidambarams apparent confusion about how to tackle the growing incidence of honour crimes as was evident from his reply to the calling attention motion on the subject in the Rajya Sabha on July 28 has surprised activists who are concerned about the inadequacy of existing laws to punish the perpetrators of such crimes.

The July 28 motion, for the first time in Indias parliamentary history, called attention to the honour killings, honour-related crimes and the role of the self-proclaimed panchayats. Fourteen MPs, cutting across party lines, drew the attention of the government to the urgent need for a special law to tackle the social menace. Chidambaram remained unconvinced, although he called such crimes a blot on the country.

In an interview to Frontline, Supreme Court advocate and Member of the 18th Law Commission, Kirti Singh, reflects on the need for a special law to address honour crimes and the possible contents of such a law. Kirti Singh is also the legal convener of the All India Democratic Womens Association (AIDWA). She has been associated with womens movements for long and has been involved in suggesting amendments to several laws dealing with women. Excerpts:

Home Minister Chidambaram said in the Rajya Sabha that comparison of honour killing with sati was misplaced because sati was disguised suicide. He said honour killing had to be dealt with as murder and wondered whether defining it under a separate law would take us very far. Your comments.

To me, it is extremely important to have a special law to deal with the question of honour killings and honour crimes because the number of such crimes has been increasing. I was reading a judgment of the Punjab and Haryana High Court in which the Judges say that the Vacation Bench, out of 60 cases, heard approximately 27 cases of young couples, all coming to the court to seek protection and to ask for anticipatory bail because they apprehended that the police would register cases against them, and their parents, along with some others, would take action against them.

More and more such cases are coming to light in Haryana and western Uttar Pradesh and we notice some special features. One is that the killing is not committed by just one or two persons. It is a crime in which the entire community or sections of the community are involved. The caste panchayats, particularly, seem to have certain sanction from certain groups. We have no law that views these killings as community killings and seeks to punish or make liable such panchayats.

Under ordinary law, members of the panchayats that sanction such crimes will be considered as abettors.

As co-conspirators. The accused, who can be identified directly, can be considered as co-conspirators. But the fact is that not only the panchayats but the leaders of the community and others are equally culpable for publicly suggesting that killing the victims upheld the honour of the community or the gotra. The law does not punish glorification. We have to think of a special law like the sati law, because we have to define the killing and the crimes. The killings are always premeditated and intentional, and the perpetrators deserve life sentence without any mitigation. Life sentence should really mean life in such cases.

When we define honour crime, we have to take into account the role of the caste panchayats, the kind of crimes that are actually occurring mainly excommunication, isolation of the couple and stopping the boys from carrying on a trade or a profession or farming [which is what happened in the Manoj and Babli case when the entire village was asked not to sell chara, or fodder, to the family]. Sometimes, the families are isolated in such ways that they cannot live any more. So, it directly affects the life and liberty of not only the couples.

How will a separate law tackle excommunication?

The caste panchayat gives orders to excommunicate the couple. So we have to provide for some kind of punishment to be awarded to these bodies or persons.

So, under the proposed law, will caste panchayats become illegal?

I am refraining from saying that. Ideally, the way they are functioning right now, they should become illegal. But certainly, they should be made punishable and culpable for any such action that they take, whether excommunication or any other sanction against the couple and their families, normally the boys families. There should be rules and regulations regarding caste panchayats, even if they are not declared illegal.

If you lay down rules and regulations, caste panchayats will become legal.

This is a problem that we have. We have to deal with it in a nuanced manner, perhaps in a phased manner, because you cannot say we dont want any associations of communities at all to function. But the law can address what the parameters of their functioning should be.

How can an amendment to the Special Marriage Act (SMA) help couple defy excommunication?

It can ensure that the couple can get married quickly, instead of having to wait for a month as per the present requirement under the Act. Marriages outside the SMA should get registered immediately. A state mechanism should be set up where the couple can inform and seek protection. Even under police protection, some of these honour killings have taken place. Some sanctions against the families of these couples have been enforced effectively under police protection. It is important for the police and the state to think of an effective mechanism to provide protection to these couples. In particular, no case of kidnapping should be registered against the boy in case the boy and the girl have crossed a certain age.

What is the purpose of insisting on a one-month waiting period for registering a marriage under the SMA?

Ours is a deeply intolerant society and the kind of disrespect we have for young peoples wishes is obvious. Therefore, the SMAs stipulation of a one-month waiting period does not appear to be for any legitimate reason. Legally, it invites objections to the marriage even if the boy and the girl have crossed the legally marriageable age. In my view, it is necessary that the boys age must also be brought down to 18.

What is the objective of the proposal to reduce the boys marriageable age to 18 from 21?

What happens in a number of these cases is that they are filed against the boy under the Prohibition of Child Marriage Act [PCMA], and for kidnapping, abduction, etc. The PCMA says the boy can be punished for marrying between the ages of 18 and 21. It is unfair that the girl is allowed to get married at the age of 18 and the boy is not. Patriarchal notions come to the fore if a different marriageable age is insisted in the case of a boy. It encourages marriages between older men and young girls. It reflects a kind of gender bias.

Are you working on a draft piece of legislation on honour crimes?

The AIDWA is working on a draft Bill. We hope to come out with some definitions, especially on honour crimes and killings and try to make a larger number of people liable for such offences. It has to be done sensitively. While we do not want to make the entire village liable, we certainly would make the caste panchayat liable for encouraging the village to abet the crime.

Look at what happened in Jhajjar. The intention is to grab the land. Until a few years ago, we were in denial mode saying we dont acknowledge that there were honour crimes in non-Muslim communities. But we are still far away from thinking seriously about these crimes and how to nail their perpetrators.

How far has the Commission of Sati (Prevention) Act, 1987, helped in fighting the social evil?

The Act has a purpose in defining a crime, in raising consciousness about it, apart from seeing that the perpetrators are brought to book. The conviction rate under the Act may be low. Under the Sati Act also, we had to fight. Even now, glorification goes on in some temples. But it is a battle that we can wage because we have the Act, which defines glorification and we hope that one day the Supreme Court will hold that some practices in temples constitute glorification.

The Sati Act certainly was a deterrent. Right now, we talk about honour killings but not honour crimes or how these crimes should be dealt with. What is the kind of liability that should exist needs to be spelt out.

In one case of honour killing, the Supreme Court felt that the convicts deserved to be given the death penalty. [Mayakaur Baldevsingh Sardar vs The State of Maharashtra (2007 (10) SCR 752)]. The presumption of guilt must shift at a particular stage on the accused.

We have to give powers to the magistrate to deploy enough force to protect a family under threat from a caste panchayat. Power of injunctions can be given to the local magistrate to stop a caste panchayat from acting on these issues. Immediately, one can think of a few sections to a proposed Bill, namely, honour killings, honour crimes, glorification as crime, powers of magistrate and injunctions against caste panchayats. Only a law can help collect data about the occurrence of such incidents across the country.