Updated: Jun 19
By: SUMAN CHOUDHARY,
Banasthali Vidyapith, Rajasthan
IN SUPREME COURT OF INDIA
CITATION: AIR 2018 SC 1601
APPELLANT: Shakti Vahini, an Organization.
Respondent no. 1: Union of India.
Respondent no. 2: Ministry of Home Affairs.
Respondent no. 3: Ministry of Women and Child Development.
DATE OF JUDGEMENT: 27 March 2018
BENCH: (CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud.
There has been a spate of honour killings in Haryana, Punjab, and western Uttar Pradesh. This has made it all the more essential to look into and deal with this fundamental problem as the existing law is not acting as a deterrent on the caste combinations and these illegal assemblies who consider them outside pale of law. The Scio-cultural outlook of the members of caste councils or panchayats is such that they have minimal or scant regard for individual liberty and autonomy.
To avert this, Petitioner organization was authorized for conducting research study on honour killing in Haryana and western Uttar Pradesh dated 22/12/2009 passed by the National Commission for women.
This petition has been filed under Article 32 of the Constitution of India seeking directions to the respondents- The State and the Central government to take preventive steps to combat honour crimes, to submit a national and state plan of action to curb crimes of the said nature and further to direct the state government to constitute special cells in each district which can be approached by the couples for their safety and well-being. Also, prayer have been made to issue a writ of mandamus to the state government to launch prosecutions in each case of honour killing and take appropriate measures so that all such honour crimes and embedded evil in the mindset of certain members of the society are dealt appropriately.
1. Whether an individual has a right to choose life partner of his/her choice?
2. Whether honour killings undertaken by khap panchayats are legal?
· Petitioner's argument: -
1. The actions which are found to be linked with honour based crimes are: Loss of virginity outside marriage, infidelity, having unapproved relationship, refusing an arranged marriage, asking for divorce, demanding custody of children after divorce, leaving the marital home without permission, causing scandal or gossip in the community, falling Vitim to rape.
2. Murder in the day light and brutal treatment like beating, saving of heads or putting the victim on fire in full public gaze of the members of the society reflect that the victim is treated as inanimate objects totally oblivious of the law of the land and absolutely unconcerned with the feelings of the victim who face such cruelty and eventually succumb to them.
3. The parallel law enforcement agencies consisting of leading men of a group having the same lineage or caste comprise themselves into an assembly and deal with the problems that affect the group in the manner they want to and nurture the feeling that their duty is sanctified and their action of punishing the hapless victims is inviolable. They are known by the names panchayats or khap panchayats and try to adopt the chosen course of ‘more vigilantism’ and enforce their diktats by assuming to themselves the role of social or community guardians which have the power to punish for the crimes and direct for social boycott or killing by a mob. For them, it is projected honour that rules supreme and lives of other become subservient to their desires an decisions.
4. These extra constitutional bodies which engage in feudalistic activities have no compunction to commit such crimes which offences under the Indian penal code are.
5. Article 21 which provides for protection of the life and personal liberty and guard basic human rights and equality of status has not been taken care of by these bodies.
· Respondent’s argument:
1. Honour Killings are treated as murder as defined under Section 300 of the IPC and punishable under Section 302 of the IPC. As the police and public order are state subjects under the Constitution, it is primarily the responsibility of the states to deal with honour killings.
2. Central Government is engaging various States and Union Territories for considering a proposal to either amend the IPC or enact a separate legislation to address this menace.
3. Since the matter of the 242nd law commission report falls under list 3.
4. Although some states have formed an action plan in the name in pursuance of the directions issued by this court, yet they have failed to effectively implement the same in letter and spirit.
5. And so effective guidelines to the police and law enforcement agencies to curb the menace of honour killing need to be formulated and implemented.
Court held that the assertion of choice is an in segregable facet of liberty and dignity. The choice of an individual is an inextricable part of dignity, for dignity erosion of choice. 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. If the liberty cannot be sustained, subject to constitutionally valid provisions of law, the life of a person becomes comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement.
If the right to express one’s own choice is obstructed, dignity cannot be thought of in its sanctified completeness. When two adults marry out of their own volition, they chose their path, they consummate their relationship, they have the right to do so and any infringement of the said right is a constitutional violation. These groups or assemblies which practice in majority in the name of class or elevated honour of clan cannot claim power, authority and final say to impose any punishment. The elders of the family can never be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of their clan. The constitution and the laws of their country do not countenance such act and the whole activity is illegal and punishable as an offence under the criminal law.
Court referred to the 242nd report submitted by the law commission of India. It stated that the words honour killing and honour crimes are being used loosely as convenient expressions and as more of a catch phrase rather than an apt or accurate expression to describe the incidents of violence and harassment caused to the young couple intended to marry or having married against the wishes of the community or family members. There are reports that drastic action including mental torture, infliction of or threats of severe bodily harm, wrongful confinement, persistent harassment and sometimes even murder is resorted to either by close relations or some third parties.
Honour killing are condemned as a serious Human Right violation and are addressed by International institutions also. The Council of Europe convention on preventing and combating violence against women and domestic violence addresses the issue under Article 21 which deals with unacceptable justification for crimes including crimes committed in the name of honour.
The Law Commission had prepared a draft Bill in which it has stated that the idea underlying the provisions in the draft Bill is that there must be a threshold bar against group or assembly for the purpose of condemning the conduct of young persons of marriageable age marrying according to their choice, on the ground that they belong to the same gotra or they belong to different castes and communities. These groups, often known by the name of Panchayat or caste elders, have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law and they cannot create a risky and hostile situation in the village/locality concerned. The very assembly is made for an unlawful purpose i.e. objecting the marriage which is otherwise legitimate and within the bounds of law and their action should be treated as an offence as it endangers the lives and liberties of individuals concerned. Such assemblies do not have any regard for the life and liberty of others and such conduct shall be adequately tackled by penal law without any prejudice to the prosecution to be launched under the general penal law for the commission of offences including abetment and conspiracy.