Honour Killing and the Role of Khap Panchayats in Modern India
This article Honour Killing and the Role of Khap Panchayats by Yashpal Jakhar scrutinizes the means through which the Khap Panchayats embolden honour killings and also prepends Shakti Vahini v. Union of India, (2018) case to make the burning issue crystal clear to the readers.
Introduction
We, the people of India, claim that we are the world's largest democracy and that we respect the human rights of the people, but on the other hand, draconian practices like Honor Killing, Dowry Deaths, Rape, Female infanticide are prevalent in our society. This article will focus on the practice of "Honour Killing" with particular reference to a recent Supreme Court case.
Honour Killing refers to an act of killing someone (in most cases, a member of the family) in order to save the family's honour and culture. The act is committed in the belief that the victim has brought shame and dishonour to the family or society and to compensate that the members of the family choose to kill the family member. "Caste and Gotra" system of our society is also somewhat responsible for the prevalent practices of honour killing.
Chief Justice Deepak Mishra stated that, "Nobody should violate the court rule, otherwise face accusations of breaking the law. Two adults are free to marry, and 'No third party' has a right to harass or cause them harm."
According to the reports of the National Crime Records Bureau (NCRB), India had 251 cases of honour killing in 2015. Most of these killings were committed by people who feel that they are acting reasonably to save their family's honour. In the last three years, more than 300 cases of honour killings increased in India. The Northern belt of India, especially the states of Punjab, Haryana, Rajasthan, Madhya Pradesh, and Uttar Pradesh, are the major hotspots where most honour killing cases are reported.
Background
In this article, a substantial study on a crucial judgment of the Supreme Court of India is given, which has its effects on human rights as well. On the day of March, 27, 2018, the Supreme Court gave a landmark judgment in the Writ Petition (Civil) No.231 of 2010- Shakti Vahini v. Union of India & ors. that "any attempt by Khap Panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely 'illegal' and laid down preventive, remedial and punitive measures in this regard." The verdict of the Court came on a petition filed by a "Non-Government Organization (NGO) Shakti Vahini" in 2010. The petitioner had sought directions to States and the Centre to execute a plan to prevent the acts of honour killing.
The Fifty-four page landmark judgment was delivered by a full bench of three judges comprising the Chief Justice of India, Mr. Justice Dipak Misra, Mr. Justice A.M Khanwilkar and D.Y Chandrachud. The Court held, "the criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on a daily basis to be concluded preferably within six months from the date of taking cognizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional Court so as to ensure expeditious disposal thereof."
It was also said in the judgment that, "Khap panchayats should not take the law into their hands and cannot assume the character of a law implementing agency for that authority has not been conferred upon them under any law." Khaps panchayats are caste and community-based assemblies - usually comprising elderly men from the communities - in northern states of India that decides issues that are generally small in nature, like issues related to dowry, children, water problems and marriages.
Facts of the Case
- A Non-Governmental Organization (NGO) Shakti Vahini was assigned the research study task by the National Commission of Women on an order dated 22 December 2009 on the topic "Honour Killings in Haryana and Western Uttar Pradesh".
- In the report, it was stated that a number of instances of honour killings were reported in the States of Haryana, Uttar Pradesh, Rajasthan, Madhya Pradesh and Punjab.
- As per the reports of the National Crime Records Bureau (NCRB) 28 cases in 2014, 251 in 2015 and 77 cases in 2016 were reported with honour killing. Cases were registered under murder (Section 302 IPC) and culpable homicide not amounting to murder (Section 304 IPC).
- A writ petition was filed under article 32 of the Constitution of India with an aim to seek directions to the respondents that, includes State Governments and the Central Government to take preventive steps in order to stop the honour killings, to submit a National Plan of Action and a State Plan of Action to prevent the crimes of such nature.
- Prayers have been made to issue a writ of Mandamus to the State Governments to initiate prosecution in cases related to honour killings.
- In the petition filed by the petitioners, there were many actions found to be related to honour-based crimes. Some of them are: loss of virginity outside marriage, pre-marital pregnancy, infidelity, having unapproved relationships, refusing an arranged marriage, asking for a divorce, demanding custody of children, leaving the family or marital home without permission, causing scandal or gossip in the community, falling victim to rape.
Issues Raised
There were mainly two issues in front of the Court, which are as follows:
- Whether the right to choose a life partner or freedom of marriage is a recognized right under the Constitution of India? If it is, then is the Government of India taking appropriate actions to safeguard the right?
- Whether the law of our country recognizes institutions such as Khap Panchayats for delivering justice, and do we have sufficient laws to check the practices in which such institutions are involved?
Argument By Petitioners
- Petitioners contended that there had been a rise in the number of cases related to honour killing in Haryana, Punjab and Uttar Pradesh, which is causing fear among youth who wants to get married of their own choice.
- The social pressures and the inhumane treatment by the institutions like Khap panchayats and critical groups that take the place of lawmakers and enact fierce punishments which instigate tremendous fears and compel the victim to commit suicide or suffer irrevocably.
- The action of a woman or man in choosing a life partner in accordance with his or her own choice beyond societal standards is seen as disrespect that, in the end, causes the death of an innocent person by the cruel means of social institutions.
- The petition claims that the parallel law enforcement agency consists of leading men of a community of the same family or caste who also face issues affecting the group.
- It was also contended by the petitioners that these agencies or social institutions call themselves Panchayats, which have the power to punish for the crimes and direct social boycott or killing by a mob.
Argument By Respondents
- The petitioners contended that heinous crimes like honour killings are considered murder, defined under section 302 of the IPC. As per the Seventh Schedule of the Constitution of India, Police and Police order are the subjects in the State list. Therefore, it is the duty of the State to ensure that the crimes like honour killings do not take place.
- On 9th of September, 2013, the Government of India filed another affidavit stating, among other things, that in order to tackle the issue of "honour killings", a Bill titled "The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill" has been recommended by the Law Commission of India vide the 242nd Law Commission Report. The Government of India has further contended that since the matter of the 242nd Law Commission Report falls under List III of the Seventh Schedule, that is, the Concurrent list. On which both the Central as well as the State governments can make laws.
- It has been submitted that the State Governments have issued systematic advisories for preventing and curbing the menace of honour crimes. It was also asserted that all States are determined to take "pre-emptive, protective and corrective measures" whenever any individual case comes to the notice.
- In addition, various State Governments also submitted their contentions to the Supreme Court of India. They stated the preventive steps taken by them to stop heinous crimes like honour killing. They also contented their views on the role of Khap Panchayats and other similar social institutions.
Judgment (Judgment In Rem)
"We don't live in a world in which there exists a single definition of honour anymore, and it's a fool that hangs on to the traditional standards and hopes that the world will come around him."
– Chief Justice Dipak Mishra
The judgment of this case was a lengthy and erudite judgment of the year 2018. The judgment referred to the Law Commission's report, which recommended framing a law to ban Khap panchayats from passing orders interfering with the free will of any man and woman wishing to get married. The Law Commission had proposed the enactment of a "Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances) Act."[1]
[1]As per the Act, the very holding of a Khap panchayat with the intent of deliberating upon a marriage on the ground of honour was to be illegal. Any intimidation and creation of an environment of hostility were also deemed to be a crime.However, after noting that the Law Commission had produced such a report, the Union of India gave a rather specious argument as to why it had not accepted the report and enacted a law. The Union said that since the subject matter related to the concurrent list of the Constitution (i.e. where the State and the Centre have concurrent or co-existent jurisdiction over a subject), it was not possible to legislate without consultation with the states. Why the consultation was not complete even five years later was completely glossed over.
The Court did not merely rely on the report of the Law Commission. It ruled that the choice of a partner was a fundamental aspect of dignity and liberty and was constitutionally protected by Articles 19 and 21 of the Constitution. Further, once a right was recognized, it was the duty of the State as well as the Courts to enforce and protect that right.
In his inimitable style, Chief Justice Dipak Misra ruled that "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… The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice… When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. 'And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era…'"
Recognizing the need to protect the freedom of choice, the Court laid down a series of guidelines. They were preventive, remedial and punitive in nature. A duty was cast on the police to attempt to stop the holding of a Khap panchayat in the case of an inter-caste or same-gotra marriage. In case such prevention was not possible, the police and state authorities were required to both provide security to the married couple as well as file FIRs against the persons who held the Khap panchayat and intimidated the couple. Finally, failure to prevent the panchayats would also result in punitive action against the erring police and state officials.
The judgment thus upheld the right of an individual to choose a partner. It was one more in a long series of cases to do so. The novel feature of the judgment was that it went on to hold those khap panchayats, as extra-judicial coercive machinery, were invalid. The Court held that "the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wed-lock. Their consent has to be piously given the primacy of the law does not recognize any space for informal institutions for delivery of justice. It is so since a polity governed by 'Rule of Law' only accepts the determination of rights and violation thereof by the formal institutions set up for dealing with such situations."
This judgment rightly implies that if power is vested in non-state actors, the same is likely to be misused. The very concept of the Rule of Law necessitates the concentration of coercive power in institutions operated by and under the control of the State. In a democracy, such institutions are answerable to the people as well as to a constitution. Khap panchayats are extra-constitutional and feel little need to respect the values espoused in the Constitution. Individuals who are at the receiving end of adverse rulings thus have limited scope to rely on the fundamental rights guaranteed under the Constitution. This is because the vast majority of the rights are guaranteed against state excesses, not private abuses of power.
Court further relied on several cases:
- In Lata Singh v. State of U.P, (2006) 5 SCC 475 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."
- In Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397 the Court noted that, "the choice of a woman in choosing her partner in life is a legitimate constitutional right. It is founded on the individual choice that is recognized 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 practiced by the collective under some kind of a notion."
- In Kartar Singh v. State of Punjab, 1962 SCR (2) 395 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."
Social Relevance
A Khap is a community organization that generally represents a caste or a group of related castes. A Khap Panchayat is an assembly of Khap elders where as a Sarv Khap is an assembly of many Khap Panchayats.
Khap Panchayats are not elected bodies of government, and generally, khaps are interested in the issues of the community that they represent. They are not associated with the democratically chosen Panchayats, which are local governments. Even though a Khap Panchayat lacks formal government recognition or power, it nonetheless has a lot of social influence in the community it serves.
As was previously indicated, the Constitution makes no mention of "khap panchayats." It is essentially a caste-based customary organization that was established by a group of individuals who believe that they have the right to defend culture and society because of long-standing conventions and traditions. It serves as a de facto Court but has no legal standing. In accordance with the "Panchayati Raj Adhiniyam," these bodies are not elected.
If a cognizable offence has been committed, the police are expected to take action against any act or order of Khap panchayats that is contrary to the law.
In this case, the Supreme Court laid down a historical precedent related to the khap panchayats. The Apex Court also laid down a series of guidelines. Most of them were preventive, remedial and punitive in nature. The Court in this case observed,
"The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is an erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness".
Conclusion and Suggestions
"India is a country where the family comes first, the caste second, the party third and the nation is hardly relevant at all."
– Nani Palkhiwala
We live in a society which is diverse. We have different types of cultures, customs and traditions that the people follow. Some customs of the society reflect the unity of India, while some of them create a dull side that no one wants to see. "Shakti Vahini v. Union of India" is the most suitable example of the freedom which had been provided by our Constitution to individuals irrespective of their sex and gender.
It is now very well established that in our society, women are considered a liability while men are considered as an asset or the protector of the family as well as the culture. Any act or action by anyone which is considered shameful or brings dishonour to the society or community leads to draconian practices like honour killings. Sometimes the decisions of the Khap panchayat are so harsh and cruel that the victim finds suicide a much better option than complying with the orders these panchayats give. We are living in the 21st Century, and now we have to accept that marrying someone of their choice is a recognized right of individuals, and we cannot pass inhumane orders in the name of community honour. We all have to make ourselves ready and capable of working according to the 'Rule of Law'.
Shakti Vahini's case is a small step towards a greater cause.
[1] 242nd Report, Law Commission of India.
[2] (2006) 5 SCC 475
[3] (2017) 4 SCC 397
[4] 1962 SCR (2) 395
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