Legal outlook on complex social issues in India

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Four years back The Supreme Court delivered a scathing judgement against khap panchayats or communal assemblies that target inter-caste and inter-religious couples and put in place a slew of preventive, remedial, and punitive guidelines to tackle the menace of so-called honour crimes.

In a 54-page judgement authored by Chief Justice of India Dipak Misra, the court said “the act of honour killing puts the rule of law in a catastrophic crisis” and said it was the duty of the government to protect the life and dignity of those harassed by the assemblies. No individual or group has the right to interfere in a consensual and legal relationship between two adults, the court asserted.

Khap panchayats have often hogged the headlines owing mainly to certain controversial aspects. Those who support khap panchayats have often said that it is a misunderstood social institution while those opposing it have criticised it for not being modern enough in its thought process and decision-making.

In another side, An honor killing or honour killing (also called a customary killing) is the murder of a member of a family or social group by other members, due to the belief of the perpetrators (and potentially the wider community) that the victim has brought dishonour upon the family or community. Honour killings are directed mostly against women and girls.

The apex court pointed out that three percent of honour killings were linked to gotra. The remaining 97% were due to religion and other reasons. Hence in the fear of losing the caste status, which they gain many benefits, makes them commit this heinous crime. The mentality of the people till now is such that they will not be ready to accept the marriages which have taken place in the same gotra or outside. Society still negatives the right of choice in marriage. The root of the cause for the increase of it is because the formal governance has not been able to reach the rural areas. The absence of the formal institutions as panchayat Smiti or a constitution gathering leads to the brutal governance of the illegal and extra-constitutionalized panchayat. The increase in the difference in sex ratio is reason to it. Honour killing are happening in the area where the sex ratio is low and girls are being bought for marriages. Large section of the society is unaware about the  rights which are made to protect them in our constitutional incapacity due to lack of education. The honour crime violates Article 14, 15 (1) & (3) 19, 21 and 39 (f) of the Constitution of India. Danger of losing Prestige and Status in society: A person’s ascribed status is more important than the achieved status. Another characteristic of honour killings is that the perpetrators often do not face negative stigma within their communities,because their behaviour is seen as justified.

In a recent judgements, Supreme Court has pronounced

that it is illegal for parents or Khap Panchayats to interfere in the marriage decision of an adult couple. The recent judgement resounds with the 2010 directive of the Supreme Court to the central government to take steps against honour killing. Prevention of Crimes in the Name of ‘Honour’ and Tradition Bill, 2010 was the response of the government.

The High Courts of Punjab and Haryana and Madras have laid down guidelines to the police on creating special cells and 24-hour helplines to provide assistance and protection to young couples. The Supreme Court has now gone a step further and asked the police to establish safe-houses for couples under threat. The direction asking police officers to try and persuade khaps to desist from making illegal decisions may appear soft. But in the same breath, the court has also empowered the police to prohibit such gatherings and effect preventive arrests. How far it is feasible to videograph the proceedings of such assemblies remains to be seen, but it may be a deterrent against any brazen flouting of the law. The verdict is also notable for dealing with some points made often in defence of khap panchayats, rejecting outright the claims that they were only engaged in raising awareness about permissible marriages, including inter-caste and inter-faith ones, and against sapinda and sagotra marriages.

The judicial trends reflect a change from its earlier approach, that can be appreciated, from the various judgments of the Courts, we can say that now, the Honour killings are not termed differently. Courts through their judgments had reiterated that killing anyone in the name of honour in the violation of the Constitution of India and anyone going contrary to the Constitution will be punished. In a landmark judgment in March 2010, the Karnal District Court ordered the execution of the five perpetrators in an honour killing case of Manoj and Babli, while giving a life sentence to khap (Local caste based Council) head who ordered the killings of Manoj Banwala (23) and Babli (19), two members of the same clan who eloped and married in June 2007 and later their mutilated bodies were found a week later from an irrigation canal. In her verdict, district Judge Vani Gopal Sharma stated, ―This Court has gone through sleepless nights and tried to put itself in the shoes of the offenders. Khap Panchayats have functioned contrary to the Constitution, ridiculed it and have become law into themselves. The case was both the first court judgment convicting khap panchayats and the first capital punishment verdict in an honour killing case in India. The India media and legal experts hailed it as a -landmark judgment. Also, few honour killing cases go to the Court, and this is the first case in which the groom‘s family in an honour killing case filed the case.

The Law Commission in 2012 (in its Report no 242) prepared a draft bill to prohibit interference in marriage alliances and to address the problem of khap panchayats in this draft, Law commission states that such informal groups would be treated as an ‘unlawful assembly’ and decisions that amount to harassment, social boycott, discrimination or incitement to violence should be punishable with a minimum sentence. This draft was criticised for being extremely narrow and conservative in its approach although it was similar to the draft submitted by the National Commission of Women.

Honour Killings are cases of homicide and murder which are grave crimes under the Indian Penal Code (IPC) Section 299 and 301 ,which deals with culpable homicide not amounting to murder while Section 300, deals with murder. Honour killing amounts to homicide and murder because the acts are done with the intention of murdering the victims as they have purportedly brought dishonour upon the family. The perpetrators can be punished as per Section 302 of the IPC. The khap panchayats or family members can also be booked under Section 302 of IPC for instigating suicide those who transgress the so called norms of the community. Such killings also violate Articles 14, 15 (1) & (3), 17, 18, 19 and 21 of the Constitution of India.

Article 14 of the Indian Constitution guarantees to every person the right to equality before the law or the equal protection of the laws. Every person, whatever is his or her status or situation is subject to the jurisdiction of the ordinary courts. This right to equality is thus asserted as one of the fundamental features of the Indian Constitution. Honour Killings are thus hideously against this very Constitutional right provided for the protection of Indian citizens. Honour killings are mainly directed towards women and thus give rise to gender violence. It is also violation of Article 19 and Article 21 of the Constitution. Such brutal murders, under the garb of saving the honour of the family, are clearly against the Constitutional provisions enshrined in Article 21. Khap panchayats violate a person’s fundamental right to life as they kill or instigate murder, in the name of honour. Every person has a right to live. The capital punishment is possible only when granted by law.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted by the Parliament of India, in order to avert atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) in society. The intention of the Act was to help the social inclusion of Dalit’s into Indian society. It defines acts such as forcing an SC/ST to eat or drink any inedible or obnoxious substance, removing clothes, parading naked or with painted face or body, assaulting, dishonouring and outraging the modesty of an SC/ST woman, sexual exploitation of an SC/ST woman, forcing an SC/ST to leave his or her house or village as punishable. The Act is linked to honour killings because numerous incidents of honour killing are in relation to caste and religion.

The Protection of Human Rights Act, 1993 makes the provision for protection of individual rights of human beings and the constitution of a National Human Rights Commission, State Human Rights Commission and Human Rights Courts for better protection of human rights of individuals.

The Protection of Women from Domestic Violence Act, 2005, provides for more effective protection of the rights of women which is guaranteed under the Constitution who are victims of violence of any kind occurring within the family.

Media can play a major role by condemning such kind of crimes and should create awareness in the society about such heinous crimes. Literacy can be used as a tool to curb this menace and people should be made aware about the Validity and authority of the Khap Panchayat and the laws related to that. To ensure that equality right follows there must be a provision of one or two women sitting in the Khap Panchayats and the State must focus upon projects and programmes which help in gender equity. It is necessary to improve sex ratio in the areas where females low in number and still practicing the female foeticide like Haryana, UP, and Punjab.

A woman can never be considered as property of man or family in a civilized society and has free will to choose her life the way she wants to live. Human dignity and autonomy are absolute values and shall never be violated at any cost. In this context it is expected from the government  to focus on such programmes and projects which help in gender equity. Abhorrent cultural practices like Khap panchayats, sati or triple talaq are clearly not acceptable. There are certain values of equality and justice that have to be non-negotiable. Justice Verma Committee Report have also recommended to put measures to Monitor illegal, patriarchal village councils which are known as “Khap Panchayats” that sanction so called “honour killings” and impose oppressive diktats such as wearing western clothes, banning girls and women from using mobile phones, or venturing out unaccompanied. The Supreme Court clarified to the Khaps that not to fancy themselves as conscience keepers of society, which is absolutely illegal. The Supreme Court also mentioned that the solution for consanguineous marriages must be derived from counselling such couples rather than encouraging hostility against them. Furthermore, the gram panchayats at the village level tend to take a backseat when it comes to addressing local disputes. There is a strong need to create an ecosystem of authority that emboldens the power of these gram panchayats so that the hold by the khaps gets slackened.

Finally a lawyer fighting in support of honour killing and fighting against honour killing both make the society aware of the rules and laws pertaining to the same. Judges are the people who make a precedent. They are seen as the justice givers which increases their status in society above all. Their judgments make way for the new cases and their approach towards such a problem fixes the seriousness of a problem and prevents evil social practices in the society.