September 30, 2022

By Aryan Mohanty

Introduction

Seeing the consequences of the honour killing custom, which continues to stigmatize communities in various parts of India. It brings the caste and gotra cultures to life. Nobody should break a court rule because they risk being charged with breaking the law. Chief Justice of India Dipak Misra, addressing against honour killings in India, claimed that two adults are allowed to marry and that “no third party” has the right to harass or hurt them. Honour killing is described as the assassination of a family member, particularly a girl, woman, or man, who is seen to bring discredit to the family.

According to the National Crime Records Bureau, there were 251 honour killings in India in 2015, indicating a considerable increase in persons who believe they are acting in defence of their families’ honour. Between 2008 and 2010, the state reported 34 honour killings. In India, there have been over 300 cases of honour killing documented in the last three years. Honour killings have primarily occurred in northern India, primarily in the states of Punjab, Rajasthan, Haryana, and Uttar Pradesh, as a result of persons marrying without their families’ consent, and occasionally for marrying outside their caste or religion. Honour killings are very common in South India, as well as Maharashtra and Gujarat in western India. The author of this post discusses the existing circumstances, legal advancements, and necessary amendments to better the current situation.

Honour killing is a type of murder committed by family members. This would be the immoral behaviour of family members who place caste and gotras over one’s life. It is carried out in order to clear a family member’s name of dishonour and humiliation. The guy or any family member murders the person who does not fit their social status. The main reasons are caste and religion, and it could even be a pre-planned murder. People still believe in the superiority of caste above life, even after 70 years of independence. India is a democratic country in which everyone has the right to life and equal treatment.

In the case of Shakti Vahini v. Union of India, the court ordered state governments and the police department to develop a robust structure to assist society in eliminating the crime of honour killing. In order to develop a solid system, the court has also mandated specific preventive, punitive, and remedial actions for the states and police administration. This case is a shining example of how dynamic and free-thinking conceptions triumphed over society’s static and illogical concepts. The petitioner, a group called “Shakti Vahini,” was given permission to undertake a research study on honour killings in Haryana, Punjab, and Western Uttar Pradesh, where they discovered that these cases are increasing by leaps and bounds in society. The petition was brought under Article 32 of the Indian Constitution, asking the court to issue directions to the government (both state and central), the Ministry of Home Affairs, and the Ministry of Women and Child Development. The Law Commission has recommended a bill called “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” to address this issue, according to the Union of India. In addition, a number of state governments have filed affidavits and responded to the writ petition.

Facts of the Case

Honour killings have been reported in Haryana, Punjab, and Western Uttar Pradesh. This has made it even more critical to investigate and address this fundamental issue, as the existing law is failing to dissuade caste combinations and illegal gatherings who feel themselves beyond the reach of the law. Any attempt to properly address this socio-cultural issue, which is rooted in superstition and authoritarianism, must consider the nature and scope of the problem, the sufficiency of existing legislation, and the use of punitive and other sanctions to limit caste combines’ power and behaviour. Members of caste councils or Panchayats have a socio-cultural orientation that places little or no value on individual liberty and autonomy.” To avoid this, the National Commission for Women permitted the petitioner organizations to conduct a research study on honour killings in Haryana and Western Uttar Pradesh on December 22, 2009.

A Writ petition has been filed under Article 32 of the Indian Constitution, requesting that the respondents—the state and central governments—take preventive measures to combat honour crimes, submit a National and State Plan of Action to combat such crimes, and further direct the state governments to establish special cells in each district that couples can approach for their safety and well-being. In addition, prayers have been offered for a writ of mandamus to be issued to the state governments, ordering them to prosecute each case of honour killing and to take appropriate measures to ensure that all such honour crimes and embedded evil in the mindset of certain members of society are dealt with appropriately.

Issue

  • Is it true that the right to life and personal liberty given by Article 21 of the Indian constitution includes the freedom to choose one’s life partner, and that denying this right would infringe on people’ human rights?
  • Is the Indian government taking the required procedures and efforts to protect the right to pick one’s life partner?
  • Is the decision made by Khap Panchayats on honour killings, which has no government sanction, in accordance with the law of the land and valid?
  • Is it possible for modern Indian legislation to check and manage conservative behaviours carried out by an informal institution like the Khap panchayat?
  • Is it permissible for members of a married couple’s or an individual’s family to perform honour killing?

Arguments

According to the petitioners, the Khap panchayat, males, and elderly people in families in northern India, notably Haryana, western Uttar Pradesh, and Punjab, have denied the individuals the right to life and liberty protection guaranteed by Article 21. The case’s petitioner argued that decisions made by Khap Panchayats that result in honour killings are a breach of Article 21. The petitioners further claimed that because the Indian Penal Code lacks a specific clause dealing with honour killings, Khap Panchayats have no qualms about perpetrating such crimes.

The petitioners, the NGO Shakti Vahini, claimed that after conducting research, they discovered that honour crimes have created dread among women today. A woman’s entire life can be influenced by a decision made by an unofficial and unlicensed group. The family’s male and older members wield more power over the lives of women. When it comes to establishing the fragile thread of family honour, women have less independent agency. The government of the states and union territories, according to the counter affidavit filed by the answer, are the key decision-making entities.

In addition, the state government has published a series of cautions aimed at reducing the threat of honour crimes. Because it appears under the concurrent list of the Constitution, police and public order are considered state concerns. According to the respondents, the 242nd Law Commission Report recommended a bill titled “The Prohibition of Interference with the Freedom of Matrimonial Alliance Bill” in response to an order issued by the Supreme Court. As a result, they’ve had a lot of encouraging comments from other states.

Judgement

The tendency of honour killings is on the rise, and these deaths have instilled terror in young people who want to marry but are afraid to do so for fear of being killed. The societal pressure and subsequent inhuman treatment by the core groups who claim to be legislators and enforce exceptionally harsh punishments build enormous terror in the victims, driving them to commit suicide or suffer irrevocably at the hands of these groups. When such organizations’ egoism receives backing from equally motivated forces, they become law in and of themselves.

Human rights are violated and fundamental rights are destroyed in the sake of class honour, group rights, or perverted individual perceptions of honour. Individuals and groups like these justify their actions by relying on the theory of socially sanctioned standards and the legitimacy of their actions under the cover of community ethics, which leads to vigilantism. The assembly or collective defines honour based on its own perceptions and describes it in a way that allows it to be justified normatively.

The concept of honour encompasses a wide range of aspects. When a young man falls in love or enters into marriage, he may become the victim of honour killings or be subjected to severe treatment by the girl’s family members. The collective acts like a patriarchal monarch, treating spouses, sisters, and daughters as second-class citizens who are subordinate, even servile or self-sacrificing, with no individual autonomy, desire, or identity. The male members of the community emphasize the concept of status, and a sense of masculine supremacy becomes the sole regulating component of perceiving Honour.

This is an insidious practice of Khap Panchayats, which amounts to them taking the law into their own hands and declaring the invalidity and impropriety of Sagotra (belonging to the same gotra or pravara or different sub divisions of the same caste) inter-caste marriages, handing over punishment to the couple, and pressuring family members to carry out their verdict by any means amount to a flagrant violation of the rule of law and invasion of the personal Law enforcement agencies must be allowed to enforce the law. When a criminal under the IPC is committed, for example, a group of individuals cannot inflict the punishment. They do not have any power. They can call the cops or file a police report. They may also assist in the prosecution of the accused in accordance with the law. However, by claiming that they are raising awareness, they are unable to impact others’ fundamental rights or conceal their own criminal activities. In fact, it must be condemned as a violation of the law and, as a result, must be stopped. Their operations are to be completely halted.

It is important to note that honour killing is not the only sort of crime related with the Khap Panchayats’ actions and decisions. Although it is a serious offence, it is not the only one. The genus is merely a portion and specie of honour crime, yet it is a serious one. However, it can be declared without fear of disagreement that any form of torture, anguish, or ill-treatment in the name of honour that weakens an individual’s ability to choose in matters of love and marriage by whatever assembly, under whatever name it is known, is prohibited and cannot exist.

The expression of choice, according to the court, is an inseparable aspect of Liberty and Dignity. Individual choice is inextricably linked to dignity, because dignity cannot be imagined in the absence of choice. The concept of liberty must be assessed and tested against the backdrop of constitutional sensitivity, protection, and values. It is the duty of the Constitutional Courts, as sentinels on qui vive, to vigorously preserve an individual’s right to liberty, because an individual’s dignity is inextricably linked to liberty. If liberty cannot be preserved, subject to constitutionally valid legal provisions, a person’s life becomes akin to that of the living dead, forced to endure cruelty and torture without protest and to tolerate the imposition of thoughts and ideas without the ability to express dissent or record a disagreement.

If one’s right to choose one’s own decisions is restricted, dignity cannot be considered in its holy fullness. When two adults marry of their own free will, choosing their own route and consummating their relationship, they have the right to do so, and any violation of that right is a constitutional violation. These organisations or assemblies that practice in the name of class or exalted clan honour cannot claim power, authority, or the last word in imposing any punishment. The elders of a family or clan must never be allowed to make a decision based on passion and to take away the lives of young people who have exercised their right to marry against their elders’ wishes or against their clan’s traditional practice. The constitution and laws of this country do not permit such behaviour, and the entire conduct is illegal and punishable under criminal law.

The court cited the Law Commission of India’s 242nd report, titled “Prevention of interference with matrimonial alliance freedom (in the name of honour and tradition): A suggested legal framework.” The words honour killings and honour crimes are being used loosely as convenient expressions and more of a catch phrase rather than an apt or accurate expression to describe incidents of violence and harassment caused to young couples intending to marry or having married against the wishes of the community or family members, according to the report. As per the reports, close relatives or third parties have resorted to drastic measures such as mental torture, infliction of or threats of severe bodily harm, wrongful confinement, persistent harassment, and even murder. It listed several factors that contributed to the crime:

  • The belief that the victim has harmed the family or community.
  • A woman’s cultural and economic status changes, and she rebels against her male-dominated culture.
  • In Western cultures, honour killings are frequently the result of women seeking greater independence and the freedom to choose their own path.
  • Adulterous activity by a woman, or a premarital relationship, or the statement of their right to marry who they want.

According to the report, such violent crimes are targeted primarily at women. Men are attacked by members of a woman’s family who believe they have an inappropriate relationship with her. It went on to say that this wickedness is not unique to our country, but that it affects many other societies as well. Honour killings have been reported in India, Israel, Italy, Morocco, Sweden, Turkey, Uganda, Bangladesh, Brazil, Ecuador, and Western and Gulf countries, according to the UN commission on human rights. It transcends all civilizations and religions. Honour killings are considered a significant violation of human rights and are addressed by international organisations. The topic is addressed under Article 42 of the Council of Europe Convention on preventing and combatting violence against women and domestic violence, which deals with unacceptable excuses for crimes, including atrocities perpetrated in the name of honour.

The Law Commission had prepared a draught Bill in which it stated that the idea underlying the provisions in the draught Bill is that there must be a threshold bar against group or assembly for the purpose of condemning the conduct of young people of marriageable age marrying according to their choice, on the grounds that they belong to the same gotra or castes and communities. These groups, frequently referred to as Panchayat or caste elders, have no power to interfere with the lives and liberties of young couples whose marriages are legal, and they cannot create a dangerous and hostile environment in the village/locality in question.

The very gathering is for an illegal purpose, namely, to protest to a marriage that is otherwise legal and within the confines of the law, and their actions should be punished as a crime because they imperil the lives and liberties of everyone involved. Such gatherings have no respect for the lives and liberty of others, and their conduct shall be effectively addressed by penal law, without prejudice to the prosecutions that may be brought under the general penal law for crimes such as abetment and conspiracy.

Directives issued by the Court

Preventive measures

  • The state government has been asked to identify regions where occurrences of killings or Kaph panchayat assembly have been reported in the last five years.
  • Superintendents of police in certain areas must be more vigilant in the event of inter-religious or inter-caste weddings in the area.
  • If a police officer learns of a Khap panchayat meeting in the area, he or she should tell his or her superior officer as well as the Deputy/ Superintendent of Police.
  • DSP/SP must be present when such information is received, and he must notify the members that they must not take any action that would endanger the couple or their family. Each member will be held criminally accountable if such a decision is made.
  • If the DSP has grounds to believe that the meeting cannot be avoided or that the couple would be harmed as a result of his interactions with members of the Khap, he can report to the DM/SDM and request an order under sections 144 and 151 of the CrPC.
  • To sensitise law enforcement authorities, the Home Department and state governments must collaborate. They must include all stakeholders and statistics in this process. Institutional mechanisms should be in place to coordinate with all parties.

Remedial Measures

  1. If the Khap panchayat makes a decision against a couple despite the precautions, a FIR should be filed.
  2. Police are also instructed to conduct an effective investigation into the charge made in the FIR, offer protection to the couple/family, and, if necessary, organize the couple’s wedding with police protection.
  3. The state government should establish safe residences’ for such couples.
  4. The DM(s) shall entrust an Addl. SP with the task of conducting a preliminary investigation to determine the validity, nature, and intensity of the threat after receiving a report from a couple/family that any hap panchayat is opposing their marriage.
  5. He is supposed to send a report to the SP once he is satisfied with the threat’s veracity.
  6. Failure by police or district authorities to follow the aforementioned instructions will be regarded an intentional act of carelessness or misconduct, for which departmental action must be taken and completed within six months.
  7. Officials who were aware of the incident but did nothing to prevent it or who did not respond immediately when one occurred will face disciplinary action (Arumugam Servai v. State of TN).
  8. It is necessary to establish special cells and 24-hour helplines.
  9. Honor killings and violence against couples should be prosecuted quickly. This directive also applies to pending cases, which must be completed within six months.

Analysis

Women are still deemed inferior to males, despite the development of knowledge and laws assuring equal standing for men and women. Wives, daughters, and sisters are nonetheless treated as second-class citizens, even if they are submissive or self-sacrificing. Choosing a life partner is not a crime, and punishing someone on the basis of caste, community, gotra, or any other criterion is entirely wrong. In this instance, the court correctly criticized the entire situation of “Honour Killings,” which violates the Fundamental Right established in Article 21 of the Indian Constitution and is of fundamental importance in our nation’s laws. Following any such method of punishing someone under the guise of one’s family name and pride is totally pitiful and unpleasant.

Second, neither the Panchayat nor family members have the ability to penalize couples who are considered as sinners and suffer irrevocably as a result of these organizations’ actions. Autonomy is individualistic, and society should recognize this. The only way to punish someone is through judicial systems, and in the eyes of the law, performing a marriage is not a crime, even if the two people are from different castes, communities, or religions. The court’s orders to end the practice of “Honour Killing” are an important step in eliminating or reducing the terrible phenomenon of such incidents.

Conclusion

The best option for the government had been presented by the court. Now came the government’s part, which was to introduce new bills and have them passed quickly so that the honour crimes could be put to an end immediately. This case is a well-known decision that dealt harshly with the cruel acts of honour crimes and went on to establish some particular recommendations for the safety of couples and individuals. The Delhi Commission for Women (DCW) filed a plea on behalf of couples who have been victims of honour crimes, requesting that the Shakti Vahini vs. Union of India guideline be implemented effectively.

Every other day, one might hear of honour killings in India. Honor killings or murders are sometimes carried out by people’s dads, brothers, or uncles. A life without honour is pointless, but murdering someone for the sake of honour is murder. Khap Panchayats are also disobeying the norms enshrined in the Indian Constitution, threatening people with honour killings if they attempt to stigmatize their group. When a community acts constructively in empowering women by providing education, giving authority to capable women, and respecting her for who she is, revolution is predictable.

Any law or international awareness will be meaningless if she does not receive moral support from her family and neighbourhood. As someone once stated, “change is inevitable,” and people’s ignorance about the consequences of honour killing on the victim’s family’s future generations should be replaced with wisdom. This crime raises public awareness of the problem and, over time, helps to moderate it. Indian youth currently require tighter regulations to combat these types of crimes, otherwise these unofficial and unapproved organisations will continue to make inhumane judgments that cannot be forgiven. Even the Supreme Court of the United States has the power to impose capital punishment in the most heinous cases. And neither these Panchayats nor anybody else in the world has the authority to impose a death sentence on an innocent human being.

References

https://lawessential.com/case-comments-1/f/shakti-vahini-v-union-of-india

https://www.soolegal.com/rc/shakti-vahini-v-union-of-india-2018-7-scc-192-

https://www.legalbites.in/case-analysis-shakti-vahini-v-union-of-india/

https://indiankanoon.org/doc/92846055/

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