Legal quest

SHAKTI VAHINI, a non-governmental organisation with well-established credentials in the field of women’s rights and child rights, filed a writ petition in the Supreme Court in 2010 highlighting the phenomenon of “honour killings” and other violations of human rights and dignity by extraconstitutional bodies known as khap panchayats, or caste councils. The petition highlighted the inaction of the state in this regard and its failure to protect the fundamental rights of citizens, particularly the right to life enshrined in Article 21 of the Constitution.

In a report submitted to the National Commission for Women and also referred to in its writ petition, Shakti Vahini stated that while panchayats had been agitating on the “gotra issue”, their ire was directed primarily against inter-caste marriage. Marriages between couples belonging to the same gotra (family name) have led to violent reactions from members of the family or the community. Khap panchayats carry out moral vigilantism and enforce their diktats by assuming for themselves the role of social or community guardians.

The petition, which is still pending before the Supreme Court, has sought directions to the Central and State governments to take preventive steps to combat honour crimes, to submit national and State plans of action to combat such crimes, to constitute a special cell in each district police headquarters that couples can approach for their safety, and to publicise such cells so that all citizens are aware of them. The petition also sought directions to State governments to launch active prosecution in each case of “honour” killing and to investigate the role of law enforcement agencies. The Centre; the Ministries of Home Affairs and Women and Child Development; the States of Haryana, Punjab, Uttar Pradesh, Rajasthan, Jharkhand, Bihar, Himachal Pradesh and Madhya Pradesh; and the government of the National Capital Territory of Delhi were made respondents in the case.

During the hearing, the previous United Progressive Alliance (UPA) government at the Centre told the Supreme Court that it was actively considering a proposal to amend the Indian Penal Code (IPC) or to enact a separate law specifically focussing on the crime of honour killing. In September 2009, the government made a reference to the Law Commission to examine the issue.

Law Commission report

In August 2012, the Law Commission released Report No.242 titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition)”. It suggested a legal framework to curb the social evil of the caste councils/panchayats interfering with and endangering the life and liberty of young persons marrying partners belonging to the same gotra or to a different caste/religion. The Commission felt that such honour crimes could be effectively checked by prohibiting the assembly or gathering of members of panchayats for the purpose of condemning a marriage and taking further action to harm or harass the couple.

It found that one of the causes of honour crimes was the change in the cultural and economic status of women and their taking a stand against the male-dominated culture. The Commission also found that it was a worldwide phenomenon. It found that the domineering position and strength caste combinations and assemblies wielded silenced or stifled investigating and prosecuting agencies. The report stated that a number of honour crimes went unreported for fear of reprisals or cascading effects. It observed that khap panchayats taking the law into their own hands and pronouncing that sagotra and inter-caste marriages were invalid and handing over punishment to couples and pressuring family members to execute their verdict amounted to a flagrant violation of the rule of law and was an invasion of the personal liberty of the people affected. The Commission pointed out that the Hindu Marriage Disabilities Removal Act, 1946, expressly declared the validity of marriages between Hindus belonging to the same gotra or pravara or different subdivisions of the same caste and that the Hindu Marriage Act, 1955, did not prohibit sagotra or inter-caste marriages.

In Arumugam Servai vs State of Tamil Nadu (2011), the Supreme Court strongly deprecated the practice of khap/katta panchayats taking the law into their own hands and resorting to offensive activities that endangered the lives of people marrying according to their choice.

In Lata Singh vs State of Uttar Pradesh (2006), the Supreme Court observed: “We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact that they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment.” The court, in this case, directed the administration and police authorities throughout the country to ensure that such couples were not harassed by anyone or subjected to threats or acts of violence. It also directed the police to institute criminal proceedings against anyone who resorted to such actions either by himself or by instigating others, and to take further stern action against such persons as provided by the law.

The report said that couples marrying against the wishes of members of khap panchayats ought not to be driven to a state of insecurity and misery. The Commission, therefore, proposed a Bill to provide for a threshold bar against congregation or assembly for the purpose of disapproving of an intended marriage or the conduct of a young couple and for this objectionable conduct of the panchayatdars to be brought within the purview of penal law. According to the draft Bill, those gathering for the purpose of condemning a marriage with a view to taking necessary consequential action are to be treated as members of an unlawful assembly for which a mandatory minimum punishment has been prescribed. The Bill treats the acts of endangerment of liberty, including social boycott, harassment, etc., of the couple or their family members as offences punishable with a mandatory minimum sentence. The acts of criminal intimidation by members of the unlawful assembly or others acting at their instance or otherwise are also made punishable with a mandatory minimum sentence. The proposed Bill has a specific provision to empower the District Magistrate to take preventive measures and to extend necessary protection to a couple or their family members whenever and wherever they faced threats from such caste panchayats.

Shakti Vahini, in its rejoinder affidavit in the case, submitted that khap panchayats were powerful vote banks and, therefore, the State police machinery and different State government agencies remained mute spectators to the extreme violence, the violation of fundamental rights and the loss of liberty and freedom experienced by innocent individuals/couples because of these community groups. Therefore, Shakti Vahini emphasised that there was a need to undertake steps for compulsory registration of marriages, as the Supreme Court mandated in its judgment in Smt. Seema vs Ashwani Kumar in 2006. The failure of the Centre and the States to enact legislation for the purpose means that runaway couples are exposed to vulnerable situations because they do not have a marriage certificate from a government agency. The couple is forcibly separated and, in connivance with the police, false cases are registered against the young man under Section 363/376 (dealing with the offences of kidnapping and rape respectively) of the IPC. Police torture and community torture then start, often leading to the young women being killed or forced to commit suicide. Shakti Vahini told the court that a quick procedure to register the marriage between two consenting adults would provide it with legal sanctity.

Sudha Sundararaman, general secretary of the All India Democratic Women’s Association, who intervened in this case, urged the court to direct the police to follow a “standard operating procedure” in such cases. This, she said, was necessary to ensure protection to couples on the run from their families. She also suggested that State governments be asked to set up safe homes where these couples could take shelter for a temporary period.

The UPA government had taken the stand before the court that the subject matter of the Law Commission’s draft Bill fell under the Concurrent List of the Constitution and, therefore, consultation with the governments of States and Union Territories was necessary before a policy decision could be taken. The Centre also claimed in January 2014 before the court that 15 States/Union Territory administrations, namely, Assam, Chhattisgarh, Goa, Haryana, Himachal Pradesh, Jharkhand, Meghalaya, Mizoram, Nagaland, Odisha, Rajasthan, Chandigarh, Dadra & Nagar Haveli, Daman and Diu and Lakshadweep had sent positive responses to the draft Bill.

The number of States supporting Parliament’s legislative measure to tackle honour crimes has been increasing since then. Punjab, Haryana, Uttar Pradesh, Andhra Pradesh, Kerala, West Bengal, and Puducherry also extended their support to the draft Bill. Haryana, Punjab and Uttar Pradesh have reportedly witnessed gruesome instances of honour killings in the recent past. For them to sign up to the campaign against honour killings is considered significant because of the political class’ diffidence thus far in taking on powerful khaps. The three States were earlier opposed to Central legislation against honour killings. Observers recalled that the Group of Ministers on honour killings the UPA had set up was only able to meet a couple of times because of the lack of unanimity on the issue.

In November 2012, the amici curiae in the case, Raju Ramachandran and Gaurav Agrawal, suggested a series of preventive steps that should be taken once the officer in charge of a police station or the superintendent of police had information about any proposed gathering of a khap panchayat. The officer concerned must register a first information report against the members of the khap panchayat if they persisted with their plans, and where it appeared that such an assembly would result in the commission of a cognisable offence, the police invoke the power of arrest, the amici curiae suggested. Besides, they also suggested steps to ensure the safety of the couple facing threat: charge-sheeting the members of the khap panchayat for conspiracy or abetment and action against the officials if they failed to take preventive, remedial or punitive action against those who gathered or intended to gather under the aegis of a khap panchayat.

The amici curiae suggested that the court direct the Centre to take a view on the desirability of implementation of the Law Commission’s report within a specified time frame.