Honour killings
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This article is written by Parul Chaturvedi, from Dr R.M.L Law College, Bangalore. It presents the current scenario of honour killing in an Indian society. To stop the atrocity of honour killing government-sanctioned various laws and reforms to protect the life of a woman.

Introduction  

Seeing the hindsight of the honour killing tradition, which prevails in some parts of India and continues to stigmatize community. It activates the caste and gotra culture. Nobody should violate the court rule, otherwise faced accusation of breaking the law. Two adults are free to marry and “no third party” has a right to harass or cause harm to them, stated by Chief Justice of India Dipak Misra, speaking against honour killings in India. Honour killing is defined as the killing of a relative, especially a girl, woman and a man perceived to bring dishonour to the family. As per the National Crime Records Bureau, Data 2015 India reported 251 honour killings in 2015, showing a significant rise in killings of people who feel that they are acting in defence of the integrity of their families. The state reported 34 honour killings between 2008 and 2010. There was a rising case of honour killing in India more than 300 cases reported from the last three years. Honour killings have been mostly reported in northern regions of India, mainly in the states of Punjab, Rajasthan, Haryana, and Uttar Pradesh as a result of people marrying without their family’s acceptance, and sometimes for marrying outside their caste or religion. Honour killings are also widespread in South India and the western Indian states of Maharashtra and Gujarat. Here in this article, the author addresses the current situation,  developments in law and amendments needed to improve the current scenario

Honour killing is an act of murder by members of the family. This would be the immoral conduct of the members of the family belief in caste and gotras above one’s life. It is done to remove a family member’s dishonour and shame. The male or any member of the family kills the person who doesn’t match their social standing. It might even be a pre-planned murder, the key reasons are caste and religion. Even after 70 years of Independence, people still believe in the superiority of caste above life. India is a democratic country where all people have the right to equal treatment and the right to life.

Purpose

  • The objective was to consider honour killing as a serious crime and to research the legal aspect of the honour killing. 
  • To warn society from the consequences of Honour killing.

Principal factor

The prime factor of the crime is that the majority of caste members do not accept inter-caste marriages on the pretext of maintaining the decorum of their caste or status of their family in the society. The crime of honour killing is increasing at a high pace due to the complex socio-cultural problems. To restore the honour and respect lost due to the intercaste love marriage. A crime such as Sati practice is strictly prohibited in India, but still increases in number. The practice of sati and honour killing are committed by sparking alone. 

The NGO Shakti Vahini filed a Public Interest Litigation(PIL) highlighting the reign of terror of khap panchayats administering draconian punishments to couples fallen in love or breached the traditional sagotra marital relationship rule.

Intention for honour killing 

  • The apex court noticed out here that gotra was linked to 3% of honour killings
  • For faith and other motives is the cause behind the remaining 97%. 
  • Continued harshness of the caste system encourages them to commit this heinous crime. 
  • Under fear of losing the caste privilege, out of which they enjoy several benefits. 
  • Perception of people towards marriage in similar gotra and outside the community are not acceptable. 
  • Society removes the right to freedom of choice from marriages. 
  • The absence of structured legislation the underlying cause of its increase is that structured governance did not reach the rural areas. 
  • In the Khap Panchayat, the absence of the formal bodies as a panchayat Smiti or a legitimate assembly leads to the ruthless administration of the unlawful and extra-constitutional panchayat. 
  • Honour killing happened in the area where the sex ratio is lower and girls are bought for marriages because of a large disparity in the sex ratio, causing the difference in sex ratio to increase. 
  • Illiteracy and lack of awareness of rights to freedom and constitutional rights to safeguard their protection from exploitation are the primary reason for the rising of crimes.
  • The honour killing violates Article 14, 15(1) & (3) 19, 21, and 39(f) of the Indian Constitution. 
  • The risk of losing reputation and respect in society is another reason for a member to involve in honour killing than the rank earned by the position. 
  • The characteristic of honour killings is that criminals do not face adverse stigma in their communities because their action is considered justified.

Khap Panchayat 

Khap Panchayats are the ego-proclaimed leaders of caste courts in a village. Many regressive views are tried to be introduced. In medieval times, the khap panchayat, an endogamous, gotra-centric clannish body, became a strong organization in the region around Delhi in the face of the fragile existence of law and order as a result of repeated forays of foreign invaders in that belt. It had a double purpose to provide its members with protection, and to settle disputes among them.

The khap leaders hold complete supremacy and power within their caste group as custodians of honour.

Khap Panchayats must be abolished to some degree so that their lack of control in the villages can help to resolve matters. 

Method of the reasoning behind Khap activism 

Is that different social caste has distinctive customs or precludes, whereby a male or female is unable to marry another male or female of different groups. 

The endogamy principle

Implies the rule that forbids marriage to individuals from the same race, region, status, sub-position, or another social gathering. Many people claim that its main role is based on a permanent unbending part of Hindu culture that would not change. This kind of intuition provides consistency for the organization in our general public of khap panchayats.

The protagonists of the khap want a formal ban on marriage to the same gotra

This is primarily due to a false fear. According to the central commission for women’s reports, only 3% of the recorded cases of honour crimes include married couples. There is only one case of the same gotra and same-village marriage in nearly two dozen such cases in Haryana in the recent past. The pair were brutally murdered and the law strictly sentenced the murders. The rest belongs to the marriage between castes or alliances that violates some old tradition. The khap elements brought about a collective hysteria about the issue of tradition.

The truth about Khap

  • The Indian legal system by its insusceptibility, to a certain extent, understands the degree and frequencies of the negligence and monstrosities committed by standing courts of the Khap. 
  • Laxmi Kahhwaha vs. The Rajasthan State and Public Interest litigation suit (PIL) has been reported in the Rajasthan High Court, drawing the court’s attention to unconstitutional panchayat status administrations on the weaker section of the general population, especially women. 
  • The court observed that these panchayats had no position whatsoever to pass social blacklists, or impose any fine on someone and ignore a person’s basic rights.
  • In the case of UP vs. Krishna Master, the Supreme Court took a remarkable step by punishing the three people accused of honour killing the six people. 
  • The bench also found that it would fall into the selves of unusual cases brought by the court to kill the whole family on the weak ground to ignite the dignity of the family. This has been replicated in Bhagwan Das vs. State (Delhi NCT) where the court held that everyone should know that the scaffold was awaiting the production of honorary slaughter. Punjab sentenced five of the seven inmates to life imprisonment in Manoj and Babli Murder.

Penalties under IPC (Indian Penal Code)

Actual Penalties under Indian Penal Code:

  • Sections 299304: Penalises any person guilty of murder and culpable homicide not amounting to murder.  Murder penalty is life imprisonment or death, and fine. The penalty for non-murder culpable homicide is life imprisonment or imprisonment for up to 10 years, and fine.
  • Section 307: Penalises threaten to kill for up to 10 years of imprisonment, and a fine. If a person gets injured, the punishment can extend to life in prison.
  • Section 308: Penalises attempt to commit culpable homicide by imprisonment for up to 3 years or with fine or with both.  If it causes injury, the person shall be imprisoned or fined for up to 7 years, or both.
  • Section 120A and 120B: Penalize whoever is a participant to a criminal conspiracy.
  • Sections 107116: Penalizes people for abetting murders, including murder and culpable homicide.
  • Section 34 and 35: Penalizes several-person criminal acts in support of common intention.

Role of provision in Indian Law

Fundamental and Constitutional rights 

  • Violation of constitutional rights under Article 14 of the Constitution of India (equality before law) and Article 19 of the Constitution of India. 
  • The barbaric murders kept under the shield to save the family’s reputation are against the constitutional provision of Article 21 (Protection of life and personal liberty), the petition said.
  • The honour killing violates Article 14 (Equality before law), Article15(1) (Restriction of discrimination on grounds of religion, race, caste, sex, or place of birth) & Article 15(3) (creating special provision for children and women), Article 19 (Protection of freedom of Speech), Article 21 (protection of life and personal liberty) and Article 39(f) of the Indian Constitution states that giving children opportunities and facilities to grow in a safe manner and conditions of equality and dignity, and protecting children and young people from abuse and moral and material abandonment.
  • The Indian legislation seems to have finally awoken to this problem after it has come into the limelight and people are speaking up against such cruelty. 
  • Finally, after the killings, according to the home minister P Chidambaram, the UPA led central government proposed to amend the Indian Penal Code and make Honor Killing a ‘distinct offence’ although how that will make any difference to the present condition still needs to be scrutinized as honour killing amounts to murder which is punishable under law.

The Indian Majority Act, 1875

  • Under section 3 of the Indian Majority Act, 1875, every person residing in India shall, upon completion of 18 years, attain the age of majority, unless otherwise stated in his or her rule. 
  • In the case of a guardian assigned to such a minor, however, the age of majority would be 21 and not 18. 
  • The Act becomes applicable in cases where the khap panchayats have forcefully split married couples, otherwise eligible for such marriage because of age, etc. This is an apparent case of breach of the provisions of this Act.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

To avoid cases of violence against Scheduled Castes and Scheduled Tribes, this Act was passed by the Parliament of India. 

  • The goal was to promote Dalits social integration into Indian society’s mainstream. 
  • Offences under this Act-
  1. Involve various actions such as forcing an SC / ST to eat or drink some uneatable or undesirable material.
  2.  Removing clothing, showoff naked or with a painted face or body.
  3. Attacking, dishonouring and offending an SC / ST woman’s modesty.
  4. Sexual harassment of an SC / ST woman.
  5. Forcing an SC / ST to leave his or her house or village as punishable. 

The Act is synonymous with honour killings because of multiple honour killing cases.

The Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005 provides for more comprehensive enforcement of the rights of women guaranteed under the Constitution who are victims of abuse of any kind that exists within the family, and of matters connected with it or incidental to it.

Indian Evidence Act, 1872

The Indian Evidence Act, 1872, also provides penalties for those involved in the concealment of evidence, either before or at the time of the suspected crime, or after it. 

Article 13 of the Act described the facts relevant where right or custom is at issue. 

Where the question relates to the nature of any right or custom, the following facts are important: 

Any transaction by which the right or custom in question was created, changed, accepted, asserted or rejected, or which was inconsistent with its nature; Particular instances in which the right or custom in question was established; The Act is important for getting those who are victims to justice because of the verdicts given by the khap panchayats.

The Special Marriage Act of 1954 

The key reason for the enactment of the Special Marriage Act, 1954, was to provide a special form of marriage for the Indian people and all Indians residing in foreign countries, irrespective of the religion or faith practised by either group, to carry out the marriage intended. 

Banned marriages:

  • Between sapindas-people in the line of ascendancy through mother within the third generation and fifth-generation in line of ascension through father. 
  • It also forbids marriage between certain ‘degrees of forbidden relationships,’ like those between sisters and brothers. 
  • Consequently, the law specifies the conditions for a legitimate marriage and forbids marriage between close relatives.

The essence of crime:

  • The essence of the crime makes identifying the suspect nearly impossible because a large crowd is usually sent off to be pelted by stones until the couple is killed. Hence no definite accused can be found. 
  • The supremacy enjoyed by the village’s khap panchayat and its pressure on the police prevents them from working properly and from carrying on the investigation. 
  • Most cases aren’t even filed with the police, and the family and the panchayat keep quiet.   

Thirty-day Notice Period:

  • The government also proposed that the 30-day notice period currently provided under the Special Marriage Act for inter-community marriages be revoked, since that time is misused by families to track, destroy, and forcibly separate. 
  • Unless people at the grass-root level are motivated to hate these killings and murders and see it as an egregious crime, no law can help change things. If water does not have a direction to travel, it can travel through the cracks. 
  • This also applies to humans. We will consider lacunas in the statute, and a way around it, until the time we don’t believe in the matter from the heart of ourselves.

Gotra:

  • Citizens need to be informed about the theoretical rationale behind the ‘gotra’ idea and its irrelevance to 21st-century marriage. 
  • The gotra scheme may be considered significant in the early years, as it was intended to prevent marriage between people with the same lineage. 
  • But in the current situation, the gotra system is highly pointless to be considered even at the time of the marriage when the lineages have diversified.

Just a simple threat against the marriage by a family member to the couple should be considered a possible danger to their lives and police security should be provided to the couple. The penalty for such heinous crimes will be a stop to committing such ‘manly’ crimes on citizens. We don’t live in the Middle Ages, so suggesting a gradual bodily punishment will only lift the eyebrows of the activists of human rights. But what can be rewarded for such a cruel act is life imprisonment.

New laws

Amending existing laws to ensure stringent action against those involved in honour crimes. The Haryana government changed its mind on honour laws on crime. In the first affidavit, the State fully agreed with the Center to amend the Indian Evidence Act, the IPC, etc. for serious action against the accused then filed a counter-affidavit to erase the reference to its earlier pro-centre stance. 

The Tribune has in its own right. The Tribune has two sets of affidavits submitted by Haryana to the Supreme Court in connection with the pending writ petition on honour killings filed by community-based organisation Shakti Vahini in June 2010.

BS Sandhu, Additional Director General for Police, Law, and Order, Haryana, filed the first affidavit (dated November 30th, 2010). It listed steps the state took to protect runaway pairs. In the end, the affidavit specifically states, “In addition to these measures, the state government fully agrees with the central government to amend the Indian Evidence Act, the IPC, the CrPC and the Special Marriage Act to take strict legal action against the accused involved in cases involving the killing of runaway couples and preventing couple harassment.” 

The Center, which had established a coalition of Honour Killing, ministers had previously suggested making honour killings a separate offence under the IPC to make law enforcement agencies aware. Another idea was to amend the Indian Evidence Act to put the burden of proof on the accused, ensuring that khap panchayats and members of the family who committed killings would have to prove innocence. A provision was also devised for the murderer and perpetrator’s shared responsibility. Another amendment to the Special Marriages Act was introduced to shorten the time of cooling off before marriage is licensed. The current period is one month.

Arguments Favouring New Law 

  • Having honour killing a distinct offence will help make law enforcement authorities more transparent.
  • One proposal is to amend the Indian Evidence Act to place the burden of proof on the accused. Thus it will be the duty of the khap panchayat or the family members to prove their innocence.
  • Under the current laws, there will be mutual responsibility. It would be jointly liable for retribution for the khap panchayat (or any party ordering honour killings) and the individual carrying out the killing.

Altercation Against New Law

  • The statutory punishment for murder offence is appropriate if it is strictly and efficiently enforced.
  • A new set of laws will not prevent killings of honour because the fundamental problem is social legitimacy for actions committed to curtailing the same gotra marriage, inter-caste marriage, inter-religious marriage.
  • We need to build knowledge through education among the traditional communities. The collective keeping of khap panchayats may be harmful to members who do not accept these killings. This may even be used abusively for malicious agendas.

Landmark cases and Judgement

Shakti Vahini v. Union of India, 2018

Dipak Misra, CJI stated The declaration of preference is a facet of liberty and dignity inseparable.

Verdicts: By Article 32 of the Constitution of India, the instant Writ Petition was preferred to seek directions from the respondents, the State Governments and the Central Government to take preventive steps to tackle honour crimes, to send a National Action Plan and State Action Plan to curb crimes of this nature and to guide the State Governments to form special cells in each case. The issuance of a mandamus letter to the governments of the state to launch proceedings in each case of honour killing and to take effective steps to ensure that no honour killing prevails. He claimed that Section 5 of the Hindu Marriage Act of 1955 upheld the opposition of khaps to marriages between persons of the same gotra. The section said “Sapinda should be separated from the side of the father by five degrees, and from the side of the mother by three degrees.

Petition Stated: Petition that the actions which are found to be linked with honour killing are- 

  1. Loss of virginity outside marriage; 
  2. Premarital pregnancy; 
  3. Infidelity; 
  4. Unapproved relationships; 
  5. Refusing an arranged marriage;
  6. Asking for divorce;
  7. Demanding custody of children after divorce; 
  8. Leaving the family or marital home without permission; 
  9. Causing scandal or gossip in the community;
  10. Falling victim to rape.

Judgment 

Article 21 The security of life and freedom and the safeguarding of basic human rights and equality of status has been shown abruptly by the acts of these Panchayats or groups which, without the slightest pain of conscience, subscribe to the honour killing.

Affidavit Filed

A counter-affidavit was filed on behalf of the Union of India, the Ministry of Home Affairs and the Ministry of Women and Child Development, honour killings are considered as murder as specified in Section 300 of the IPC and punishable under Section 302 of the IPC.

Notwithstanding the preventive steps taken by the State Police, if it comes to the notification by the local police that the Khap Panchayat has taken place and has passed some diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage that does not comply with their acceptance), the judicial police officer shall cause the F.I.R.to to be registered immediately under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.

Measures were taken

  • Criminal cases related to honour Killing with murder or abuse shall be tried before the Court / fast track court-appointed for that reason. 
  • The court will continue on a day-to-day basis to be preferably completed within six months of the date on which the crime is cognized. 
  • Same to the pending cases. 
  • The District Judge concerned shall delegate these cases to one jurisdictional court as far as possible to ensure that they are disposed of speedily.
  • Another case where the action was taken against the Khap Panchayat by Court and the death penalty to the person involved in an honour killing. 
  • For the first time, a recent judgment by a Karnal sessions court granted the death penalty to five people for murdering a young couple who had married a khap panchayat’s dictates. 
  • This sentenced a khap panchayat member to life, who ruled the marriage invalid and was present when the killing took place. 
  • The Supreme Court released a notice on June 22 to the centre and eight states outlining the measures taken to avoid the honour killing.

Reforms suggested

Penalty and punishment

Death Sentenced or imprisonment of life to accused convicted of honour killing and penalty extend to Rs 5 lakh. In case of grievous hurt punishment will be from 10 years imprisonment for life with a fine of Rs 3lakh and in some cases 3-5 years jailed with fine up to 2 lakhs in hurt or injuries.

Conclusion

Steadily and by the time many laws were amended, the government took action to stop honour killing. I conclude my article here by referring to the landmark case. The significant improvement from the case of Shakti Vahini v. Union of India, 2018, which was one of the landmark cases and judgement was given by Justice Dipak Misra by stating a proverb, “Liberty, taking the word in its practical sense means the right to choose.” Feudal thinking must melt into darkness paving the smooth road to liberty. The right of the enjoyment of freedom must be continually and zealously guarded, so that it may flourish with strength and glory. The stringent action and reforms were taken by the Rajasthan government by passing a recent bill on The Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name of Honour and Tradition Bill, 2019.

References


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