Legislation

Reluctant to act

Print edition : March 13, 2020

August 3, 2009: Members of a khap panchayat at Dharana village in Jhajjar district, Haryana, staging a protest against a family which they claim violated “gotra” norms and should be expelled from the village. Photo: Anu Pushkarna

Despite strong voices in support of an exclusive law to punish honour killings, the Prevention of Crimes in the Name of Honour and Tradition Bill remains a non-starter.

The term “honour killing” does not exist in Indian penal law. Crimes of this nature are dealt with as homicide or manslaughter. Hence, legal experts are at a loss to explain what constitutes an “honour killing”.

A bouquet of laws protects women and the disadvantaged sections against myriad forms of violence, including those involving caste and community. If the victim of a criminal act is a Dalit, provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment (S.C./S.T.) Act, 2015, are invoked. If they happen to be women or girls, laws such as the Women Harassment Act and the Dowry Harassment Act are applied. India is a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. But honour killing has taken centre stage in debates and discussions only since 2002 when the U.N. adopted a resolution on “Working Towards the Elimination of Crimes Against Women committed in the name of honour”. Human Rights Watch describes honour killing as an act of violence against a female family member who is perceived to have brought dishonour on the family and the social group. The majority of the victims of such killings are Dalits and women.

In countries where honour killing by community- or caste-based extrajudicial groups or individuals has been reported, deliberations are under way to introduce a special piece of legislation. In many countries, including India, although the police and the judiciary have started to differentiate between “honour killing” and homicide and filicide, for the victims it is a case of justice delayed or justice denied. However, the proactive stand of the Supreme Court against the heinous crime and its out-of-the-box interpretation of such a crime bring hope. Judgments in honour killing cases have prompted even the lower judiciary to treat these crimes as serious and guard against shoddy and biased investigations. The state and other stakeholders have been forced to take a relook at the crime. On many occasions, the higher judiciary has ruled that there was nothing honourable in these killings.

In December 2009, the National Commission for Women passed an order authorising the non-governmental organisation (NGO) Shakti Vahini to do a research study on honour killings among a few social groups in Haryana and western Uttar Pradesh. The NGO found rampant honour killings in these States and submitted a writ petition to the Supreme Court in 2010 seeking directions to the Central and State governments to take preventive steps against honour crimes.

A three-judge bench of the Supreme Court, in its verdict in the Shakti Vahini case in March 2018, said: “[T]herefore, we would recommend to the legislature to bring law appositely covering the field of honour killing.”

Since then the demand for a separate law has gained traction among stakeholders, including women’s rights activists and academics who say that the state must treat the crime as unique and a socially-linked one as in the case of the S.C./S.T. Act and other women-centric laws passed/amended recently.

A counter affidavit filed on behalf of the Union of India and the Ministries of Home Affairs and Women and Child Development argued that “honour killings are treated as murder as defined under Section 300 of the Indian Penal Code (IPC) and punishable under Section 302 of the IPC. As police and public order are State subjects under the Constitution, it is primarily the responsibility of the States to deal with honour killings.”

In July 2009, Home Minister P. Chidambaram announced in the Rajya Sabha that the “perpetrators of such heinous crimes” would be dealt with severely. In 2010, the United Progressive Alliance government tabled the Prevention of Crimes in the Name of Honour and Tradition and Prohibition of Interference with Freedom of Matrimonial Alliance, in Parliament to provide deterrent punishment against honour killings. While presenting the Bill, Chidambaram asserted that violent crimes were committed in the name of honour, and averred that whoever “is the cause for such crimes, an individual or collective, must be punished”.

The draft Bill, proposed by the Law Commission in its 242nd report in August 2012, sought to effect additions, deletions and amendments to various sections of the Evidence Act, the IPC and related laws such as the Hindu Marriage Act and the Special Marriages Act, 1954. It envisaged the inclusion of a specific clause in Section 300 of the IPC and amendments to the Evidence Act so that the burden of proving innocence was transferred to the accused and the instigators.

A call for some vital amendments to the Special Marriages Act was made. Under this Act, inter-caste or interfaith couples who wished to register their marriage had to give notice to the Registrar of Marriages 30 days in advance. Couples who apprehended danger to their lives found this provision to be intimidating. They had to remain underground or be on the run until their marriage was legally solemnised. The Bill proposed to minimise the notice period to reduce the risk that such couples face. It also stipulated exclusive police cells in each district to give protection to inter-caste couples.

Writer and Member of Parliament representing Villupuram in Tamil Nadu D. Ravikumar told Frontline that a new law should be enacted against honour killing. “The issue was raised in Parliament urging the government to take necessary measures to enact a law on honour crime. It is a shame on the country,” he said. There are specific laws against other social evils such as sati, dowry and crimes against the disadvantaged. “Similarly a specific law on honour killing should be enacted. The Central government should not dither on the issue further,” he said. Adi Thamizhar Katchi leader K. Jaggaiyan also sought a special law to prevent honour killings. He pointed out that under the existing penal provisions, if both the husband and the wife happened to be Dalits and were murdered, no compensation would be paid to the families of victims. In inter-caste marriages, one of the members should be a Dalit to get compensation under the provisions of the S.C./S.T. Act.

Jaggaiyan is not wrong. In the case of the newly-wed couple who were murdered in Thoothukudi in July 2019, the victims were both Dalits (the girl’s family was against the relationship as the boy belonged to a different S.C. sub-group), and the police registered a case under Sections 302, 449, 450, and 458 of the IPC. Here, the provisions of the S.C./S.T. Act were not invoked. Besides, compensation is not paid if the couple in an inter-caste marriage both happen to be non-Dalits. Similarly, if the murdered victim happens to be a non-Dalit, his or her surviving partner, even if he or she is a Dalit, is ineligible for compensation.

Investigating agencies have on several occasions colluded with parents and others who are against love marriage. The police, on the insistence of the parents and relatives of the girl, are even alleged to have fudged records to claim that the girls were minors, without proper documentary evidence. “Hence, youths who love or marry girls against the wishes of their elders are booked for abduction/kidnap and even rape,” said Jaggaiyan. Legal experts, however, said that penal provisions in the IPC and other laws, besides Articles 14, 15, 19, 21 and 39 of the Constitution, provided more than adequate legal protection to inter-caste couples if they were implemented in letter and spirit. Sections of the IPC, including 299 to 304, 300, 302, 307, 308, 107, 120 (A)(B), 34 and 35, deal with homicide and manslaughter extensively.

“But compensation and rehabilitation elements for the victims need to be worked out. If the victims happen to be Dalits, compensation will be awarded as per the provisions of the S.C./S.T. Act,” a woman lawyer at the Madras High Court said.

A non-starter

In spite of the fact that there is no specific law on honour killings, the judiciary does not find itself handicapped to punish the perpetrators of such crimes provided the investigation remains impartial and as per the law. In fact, the Madras High Court had once observed that any murder that took place because of a marriage without the consent of parents should be “classified as honour killing”. However, despite strong voices in support of an exclusive law, the Bill remains a non-starter.

The draft Bill prepared by the Law Commission explains that the idea behind the special Act was to fix a threshold bar against congregations such as khap panchayats (community groups representing a clan or a group of related clans). “The panchayat, or caste leaders, have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law. No frame of mind or belief based on social hierarchy can claim immunity from social control regulation,” it says. The law as it stands today does not act either as a deterrence or as a sobering influence on caste combinations and assemblies who regard themselves as being outside the purview of law.

In 2014, Union Panchayati Raj Minister Mani Shankar Aiyar clarified that any casteist rulings by panchayats, elected or not, “had nothing to do with the legal provisions of the 73rd Constitutional Amendment”. Reacting to an order by a khap panchayat in Haryana dissolving an inter-caste marriage and asking the couple to “live like brother and sister” as they belonged to the same “gotra” (the girl was in an advanced stage of pregnancy at that time), Mani Shankar Aiyar said that such rulings were not in conformity with the provisions of the Constitution. He clarified that neither the Constitution nor the Panchayati Raj laws vested any such powers even on elected panchayats.

Rights activists feel that although separate legislation is essential, the need of the hour is to incorporate the specific term “honour killing” into Section 300 of the IPC. They feel it will make the country’s criminal justice system strong against the “collective culture” murders. “It would ensure an unbiased and focussed investigation on honour killings,” the activist Kadir said. Many deaths, he claimed, were suspected to have links with the issue of honour but were booked mostly under Section 174 of the Code of Criminal Procedure (CrPC) as suspicious deaths and rarely got converted into 302 (murder) of the IPC. “Hence, a special law will provide clarification and help render justice to the victims. It will facilitate exclusive investigation into any suspicious deaths, especially of women in the age group of 18 to 30, in any inter-caste marriages and all love affairs,” he said.

Ironically, Pakistan, which is notorious for honour killing, passed exclusive legislation in 2016 to prevent such killings. That the law there is honoured more in the breach than in the observance is a different issue altogether. The well-known Pakistani social media activist Qandeel Baloch was murdered by her own brother some three years ago. The United States Congress is yet to pass the International Violence Against Women Act, which has been pending since 2013. A few European countries, which have recorded honour killings, have started to differentiate the crime from homicide. In August 2019, the Rajasthan Assembly passed the Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name of Honour and Tradition Bill, 2019, by voice vote, although the Bharatiya Janata Party, the main opposition, opposed the stipulation of the death penalty or life sentence for the killers. The Assembly noted that the existing provisions in various sections of the IPC and the CrPC were inadequate to deal with social killings. The State registered 71 criminal cases against khap panchayats and reported 10 honour killings since 2015.

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