This article has been written by Jayant Singh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction 

Everyone nowadays is familiar with the term ‘discrimination’. Discrimination simply refers to the treatment of a particular group or individual as inferior or less important by another group or individual. One can discriminate against another for various reasons, like caste, religion, gender, race or age. Discrimination among people may lead to the commission of some harmful acts. One of such acts is called ‘honour killing’. Today, we will discuss a case relating to the same.

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Honour killing

Before going into the details of the case, let us first understand what ‘honour killing’ actually means.

Honour killing refers to the killing or murder of one person by another person, whether they are a stranger or a family member, in an effort to uphold what they believe to be the dignity and honour of themselves or their family. Various factors, including religion, caste, race and other types of social hierarchy, play a role in such killings. It may include killing of a male or female by their family members because they believe that such person has caused dishonour or humiliation to the family name, reputation, or prestige

Facts of the case

In the case of Shakti Vahini vs. Union of India (2018), the petitioner, Shakti Vahini Organisation, approached the Hon’ble Supreme Court of India under Article 32 (Right to Constitutional Remedies) of the Indian Constitution. The petitioner’s organisation was authorised by the National Commission for Women to conduct a research study on “honour killings in Haryana and western Uttar Pradesh” by an order dated 22/12/2009. It was seen that the instances of people not marrying each other out of fear in Haryana, Uttar Pradesh and Punjab have increased due to the increase in instances of honour killings.

As per the report of the National Crime Records Bureau (NCRB) for the years 2014, 2015 and 2016, 288 cases of honour killings were reported, out of which 28 cases were reported in 2014, 251 cases were reported in 2015 and 77 cases were reported in 2016.

The petitioner under the Indian Constitution sought directions from the respondents (the state and the central government) to take measures and preventive steps to counter crimes such as honour killings and other honour crimes, to submit a national and state plan of action to reduce and control the crimes of the said nature and to also direct the state governments to make or constitute special cells for the safety and well-being of couples. Also, requests have been made for issuing a writ of mandamus to the state governments to start prosecutions in each case of such honour killings and to take measures that are appropriate to deal with such honour crimes and the evil mindset of some members of society.

The following actions/reasons are found to be connected with honour crimes, as mentioned in the petition:

  1. Loss of virginity outside marriage
  2. Premarital pregnancy
  3. Infidelity
  4. Having 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

Issues of the case

  1. Does the Constitution of India recognise the right to select one’s life partner? If so, is the Government of India taking the appropriate steps to protect this right?
  2. Whether the law of the nation recognises informal institutions like Khap Panchayat for delivery of justice and is the current legal system proficient enough to check and curb the conservative practises carried out by such institutions?

Khap panchayats and their validity

A Khap is a community organisation that represents a clan or a collection of clans. They are generally found in northern India, particularly among the Jaat people, Western Uttar Pradesh, and Haryana; however, the word has historically been applied to other communities as well. A Khap Panchayat is a gathering of Khap elders, and a Sarv Khap is a gathering of several Khap Panchayats. The Khap Panchayats frequently make pronouncements on social concerns such as abortion, alcohol addiction, dowry and education, particularly among girls. Khaps are not associated with publicly elected government bodies and are solely concerned with the business of the Khap they represent. It is not associated with the democratically elected local assemblies known as panchayats. A khap panchayat has no official government recognition or jurisdiction, yet it can wield considerable social power within the community it serves.

Contentions of the petitioner

The petitioner cited that instances of honour killing are more common in states like Haryana, Punjab, Jharkhand, Uttar Pradesh, and Delhi than in the southern states. It was observed that the tendency towards honour crimes in these states has increased to more than 300 cases in the last three years.

The pressure of society and the inhuman treatment by the core groups who consider themselves the law makers and then impose extremely cruel punishments that create fear in the minds of victims and drive or compel them to commit suicide or suffer at the hands of such groups. These core groups are basically self-proclaimed/quasi-judicial/non-legal parallel law enforcement agencies, which consist mainly of male members of the group having connections with the group, the caste or the religion, and which often meet to solve or deal with problems relating to the group. These groups call themselves ‘Panchayat’ having the power to punish for crimes or to direct the society or group for social boycott or killing by mob.

The act of a woman or a man selecting a life partner outside of community norms is considered dishonourable and, in the end, unknowingly invites death at the cruel hands of community prescription. In the petition, it is contended that the parallel law enforcement agency is made up of senior males from a caste or lineage that frequently gets together to address issues that impact the group.

Preventive measures or steps need to be taken by the state government and the Central Government to counter, control or reduce such crimes based on honour, and a national plan of action and a state plan of action to control similar crimes need to be submitted.

Contentions of the respondents

Union of India, Ministry of Home Affairs and Ministry of Women and Child Development

Respondents 1, 2, and 3 have submitted a counter-affidavit. It has been argued that honour killings are considered murder as defined by Section 300 of the Indian Penal Code, 1860, and are therefore punishable under Section 302. As public order and the police are considered state concerns under the Indian Constitution, dealing with honour killings falls primarily under the purview of the states. A proposal to either change the Indian Penal Code (IPC) or pass a new piece of legislation to address the problem of honour killing and associated issues has also been put forth by the Central Government.

The 242nd report of the Law Commission of India proposed passing a bill titled “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” to address the problem of “honour killing,” according to a new affidavit filed by the Union of India on September 9, 2013. The Union of India also asserts that discussion with the governments of the States and Union Territories is necessary in order to make a policy decision in the aforementioned matter because the 242nd report of the Law Commission of India falls under the concurrent list of the Indian Constitution.

The State of Punjab

The State of Punjab has filed an affidavit stating that it does not intend on being a silent spectator to any kind of honour killing and for the same reason, a Memo No.5/151/10-5H4/2732-80 has been issued by the State of Punjab in the Department of Home Affairs and Justice, which lays down and brings into force the revised guidelines/policies so as to remove any doubt and to clear any uncertainty and/or threat prevalent amongst the public at large. The policy focuses on dealing with the protection of newly married or wedded couples who think there is a danger to their life and liberty for at least 6 weeks after marriage. The state further asserted that it is determined to take pre-emptive, protective and corrective measures, and when any case regarding the same issue is noticed or highlighted, appropriate action has been taken and shall also be taken by the government. It is also reflected that all the culprits of the crime have been booked and proceeded against under the law.

The State of Haryana 

An affidavit has been filed by the State of Haryana in which it denies the allegations that were made against the state. It was also stated that adequate protection has been provided to the couples by virtue of the orders of the High Court and District Courts and in some instances, when the police come to know of the situation directly. It is further contended that FIRs have been registered against the accused persons and that the cases are proceeding according to law. The State of Haryana has also informed us that an action plan has already been prepared and the Crime Against Women Cells are functioning at every district headquarter in the state, and citizens have been made well aware of such cells.

The State of Jharkhand

The State of Jharkhand has filed its response, in which it stated that measures have been taken against persons involved in such crimes. It was mentioned that honour killing is not common in the State of Jharkhand and appropriate steps shall be taken by the state to combat such crimes.

NCT of Delhi

On behalf of the NCT of Delhi, a counter-affidavit has been filed. According to the affidavit, the Delhi Police Department does not keep separate records for “honour killing” instances. However, it has been said that 11 instances had been registered at the time the affidavit was filed. It is urged that such cases be handled by the District Police and that there be a special cell operating within Delhi Police for serious crimes involving internal security, and that such cases be referred to the said cell; there is no need to establish a special cell in each police district. The emphasis has been placed on the fact that the Delhi Police has sensitised the field officers in this regard, allowing the issues to be addressed with the requisite care and sensibility. The Department of Women and Child Development has also created plans for the rehabilitation of female victims facing the threat of honour killing, and attempts have been made to educate the public about the dangers of such acts. A circular on the subject of ‘Action to be taken to prevent occurrences of “honour killing”‘ has been made public.

The State of Rajasthan

The State of Rajasthan, in its response, strongly deplored the conduct of unlawful activities under the guise of khap panchayats. The State of Rajasthan contends that it has issued circulars to police officers to keep an eye on panchayat activities and has expressed its willingness to follow any guidelines issued by this Court to ameliorate and curb the evil of honour killing that exists in our society.

The State of Uttar Pradesh

Two affidavits were filed by the State of Uttar Pradesh in which it was stated that the states’ primary duty is to protect the fundamental rights mentioned and guaranteed under the Indian Constitution. Further, it was contended that while there is no specific legislation to regulate and prevent “honour killing,” effective measures are being taken by the enforcement agencies under the current law. Such measures include directions and guidelines being given to law enforcement agencies. It was also brought on record by the State of Uttar Pradesh that no cases of “honour killing” were reported between January 1, 2010 and December 31, 2012, but still, directions are being given to the police stations to keep an eye on the activities and functioning of khap panchayats. The state has agreed to comply with any directions that may be issued by this court.

The State of Bihar

The State of Bihar has filed an affidavit acknowledging that honour killing is a heinous crime that violates the fundamental rights of the citizens. The State of Bihar has mentioned five cases that may assume the character of honour killing, though the cases of honour killing are almost zero in the state. It was also said that several reformative steps for the upliftment and empowerment of women have been taken by the state, and constant efforts to sensitise people are being made. It was further stated that a scheme called “National Saving Certificate” has been initiated by the State of Bihar under which Rs. 25,000 is being provided as an incentive to any woman performing inter-caste marriage in order to ensure their economic stability.

The State of Madhya Pradesh

The State of Madhya Pradesh contends that the State Government and police are alive to the problem of honour killings and a cell named “Crime Against Women Cell,” headed by the Inspector General of Police, has been created at the state level to ensure the safety of couples and active prosecution in each case of honour killing. The Madhya Pradesh Government, vide order no. F/21-261/10 dated January 27, 2011, has issued specific instructions to the District Magistrates/ Superintendent of Police for taking strict action in cases of honour killing.

The State of Himachal Pradesh

The State of Himachal Pradesh contends that no panchayats of the nature of khap panchayats are operating in the state, and no cases of honour killing have been reported in the last 10 years. The state asserts that several measures to combat the social evils prevailing in society are being taken by the state.

Marriage under national laws

Hindu Marriage Act of 1955

An individual who practises Hinduism, Buddhism, Sikhism, or Jainism may marry a person who has converted to one of the aforementioned religions and register themselves under the Hindu Marriage Act of 1955. In accordance with this law, marriage is a sacrament and not a legal agreement.

Special Marriage Act of 1954

The Special Marriage Act of 1954 allows anyone to marry anyone, regardless of their religion. Marriage is a legal contract under this law; no religious ceremony is required to consummate the union.

Right to Marry under the Indian Constitution

No one has the right to punish two consenting adults who are getting married. Both Article 19 and Article 21 of the Constitution recognise this. Family, community, and clan approval is not required for a marriage between two adults. According to Article 21 of the Indian Constitution, the right to marriage is a component of the right to life. Thus, there is no law or provision in the constitution that forbids or makes inter-caste, inter-religious marriages unlawful.

Marriage under international conventions

Within the context of the right to begin a family, the Human Rights Charter also states that the right to marriage is protected. Everyone has the legal right to marry, which is a fundamental freedom. Insisting that these rights are a crucial component of the “foundation of freedom, justice, and peace in the world,” the Universal Declaration of Human Rights (UDHR) calls on its signatory countries to advance a variety of human, civil, economic, and social rights. The UDHR’s Article 16 guarantees the right to freely select a spouse and to enter into matrimony only with that person’s free and informed consent. The right of men and women of marriageable age to marry and establish families shall be recognised, and no marriage shall be consummated without the free and informed consent of the intended spouses, according to Article 23 of the International Covenant on Civil and Political Rights of 1966. Marriage must be entered into with the voluntary permission of the intended spouses, according to Article 10 of the International Covenant of Economic, Social, and Cultural Rights of 1966. According to the European Convention on Human Rights (ECHR), all men and women who have attained the legal marriageable age have the right to marry and start a family. Article 12 states that men and women of marriageable age have the right to marry and have children, subject to national laws controlling the exercise of this right.

Supreme Court’s Judgement

The Supreme Court ruled that a daughter, sister, or son’s human rights “are not mortgaged to the so-called or so understood honour of family, clan or the collective.”

The Supreme Court reaffirmed / restated the right to choose a life partner as a fundamental right; family, community, or clan agreement is not required for marriage between two people. “When two adults choose each other as life partners consensually, it is a manifestation of their choice recognised under Articles 19 and 21 of the Constitution,” the Supreme Court ruled.

According to the Supreme Court, a “khap panchayat” is any person or group of people who have gathered, assembled, or congregated at any time with the view or intention of condemning any marriage, including a proposed marriage, that is not prohibited by law, on the grounds that such marriage has dishonoured the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family or other people of the locality.

State governments should immediately identify districts, Sub-Divisions, and/or villages where cases of honour killing or assembly of Khap Panchayats have been reported in the recent past, for example, in the last five years.

The Secretary of the concerned states’ Home Department shall issue directives/advice to the Superintendent of Police of the concerned districts to ensure that the officer in charge of the police stations in the identified areas is extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction is brought to their attention. If any police officer or District Administration officer becomes aware of any proposed Khap Panchayat gathering, he shall immediately notify his immediate superior officer and simultaneously notify the jurisdictional Deputy Superintendent of Police and Superintendent of Police.

The Government of India’s Home Department must take the initiative and collaborate with state governments to sensitise law enforcement agencies and involve all stakeholders in identifying measures to prevent such violence and implementing the constitutional goal of social justice and the rule of law. There should be an institutional apparatus in place that coordinates the efforts of all stakeholders. The various state governments and the central government should concentrate on sensitising law enforcement authorities to mandate social efforts and awareness to reduce such violence.

Preventive steps issued by the supreme court

  1. The state governments should forthwith identify the districts, Sub-Divisions, and/or villages where reports of honour killings or the formation of Khap Panchayats have surfaced recently, such as within the last five years.
  2. The Secretary of the concerned states’ Home Department shall issue directives/advice to the Superintendent of Police of the concerned districts to ensure that the officer in charge of the police stations in the identified areas is extra cautious if any instance of inter-caste or inter religious marriage within their jurisdiction is brought to their attention.
  3. Any police officer or District Administration officer who learns about a proposed Khap Panchayat gathering must immediately inform his immediate superior officer and simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
  4. The Deputy Superintendent of Police (or the senior police officer designated by the state governments for the area/district) must speak with the Khap Panchayat members right away after receiving this information in order to make it clear that holding a meeting is against the law and that they should abstain from holding one.
  5. If the meeting goes ahead despite these precautions, the Deputy Superintendent of Police must personally attend it and make it clear to the group that no decisions should be made that could harm the couple or their family members; otherwise, everyone present at the meeting—aside from the organisers—would be personally responsible for any criminal offences committed. Additionally, he will see to it that the conversation and participation of the assembly members are videotaped so that the law enforcement apparatus may take appropriate action in response.
  6. If, after interacting with members of the Khap Panchayat, the Deputy Superintendent of Police has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall immediately submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitive measures.
  7. The Government of India’s Home Department must take the initiative and collaborate with state governments to sensitise law enforcement agencies and involve all stakeholders in identifying measures to prevent such violence and implementing the constitutional goal of social justice and the rule of law.
  8. There should be an institutional apparatus in place to provide the necessary coordination among all players. The various state governments and the central government should concentrate on sensitising law enforcement authorities to mandate social efforts and awareness to reduce such violence.

Remedial steps issued by the supreme court

  1. Regardless of the preventive measures taken by the State Police, if it is brought to the attention of the local police that the khap panchayat has met and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage that does not meet their acceptance), the jurisdictional police official shall immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code, including Sections 141, 143, and 503 read with 506 of the IPC.
  2. When an F.I.R. is filed, notice must also be sent to the superintendent or deputy superintendent of police, who is then responsible for overseeing the fast and efficient completion of an effective investigation into the offence.
  3. The couple/family should also receive urgent security, and if necessary, they should be moved to a safe house within the same district or elsewhere while keeping in mind their impression of danger. For that aim, the state government can think of creating a safe house at each district headquarters. Such safe houses can accommodate both young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps) and young bachelor-bachelorette couples (whose relationship is being opposed by their families/local community/Khaps). The District Magistrate and Superintendent of Police with jurisdiction over the area may be assigned to oversee such safe homes.
  4. The District Magistrate or Police Superintendent must handle the allegation regarding the threat made against such a couple or family with the utmost tact. To begin with, it is important to confirm that the bachelor and bachelorette are mature adults. They may then receive logistical support for solemnising their marriage and/or being properly registered under police protection, if they so choose, if necessary. If the couple desires it, they can stay in the safe house after the wedding for a minimal fee, initially for a period of one month that can be extended on a monthly basis but cannot exceed one year overall, depending on their threat assessment on a case-by-case basis.
  5. The District Magistrate/ Superintendent of Police shall entrust an officer of the rank of Additional Superintendent of Police with the initial investigation into the complaint regarding the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps. He will make a preliminary investigation to determine the veracity, nature, and seriousness of the perceived danger. When he is confident in the veracity of such threats, he must send a report right away to the Superintendent of Police within a week.
  6. Upon receiving such a report, the District Superintendent of Police shall order the Deputy Superintendent of Police in charge of the affected subdivision to cause an F.I.R. to be registered against the person or individuals threatening the couple(s) and, if required, to invoke Section 151 of the Code of Criminal Procedure, 1973. Additionally, the Deputy Superintendent of Police must personally monitor the investigation’s development to make sure it moves swiftly towards its logical conclusion. Without exception, everyone who has taken part in the assembly, including the members, will be booked during the investigation. Members of the Khap Panchayat will also face charges for conspiracy or aiding and abetting, as appropriate, if their involvement becomes apparent.

Punitive measures issued by the supreme court

  1. Any failure to follow the aforementioned instructions by district officers or police will be regarded as purposeful misconduct and/or negligence, for which departmental action is required under service regulations. The authority of the first instance shall commence the departmental action and carry it out to its logical conclusion, ideally within six months.
  2. According to the decision made by this Court in Arumugam Servai (supra), the States are instructed to take disciplinary action against the concerned officials if it is discovered that (i) the official(s) did not stop the incident despite having prior knowledge of it or (ii) where the incident had already happened, the official(s) did not swiftly apprehend and initiate criminal proceedings against the offenders.
  3. The state governments will establish special cells in each district with the District Superintendent of Police, District Social Welfare Officer, and District Adi-Dravidar Welfare Officer to handle complaints of inter-caste married couples being harassed and threatened.
  4. These Special Cells will establish a 24-hour hotline to take such complaints, register them, and offer the couple the assistance, guidance, and protection they require.
  5. The designated court/Fast Track Court created for that purpose shall hear the criminal proceedings involving honour killings or violence against the couple(s). The trial must go daily in order to be finished, ideally six months after the date the offence was recognised as a crime. We’ll quickly add that this directive will be followed even in cases that are still pending. To ensure that the cases are resolved quickly, the appropriate district judge shall allocate the matters, to the extent practicable, to a single jurisdictional court.

Conclusion

In this article, we have discussed the case of Shakti Vahini vs. Union of India (2018) in detail. We have discussed the meaning of honour killing and where it is more frequent in India, the facts of the case, the issues of the case, the contentions of all the parties involved (petitioner and respondents), the meaning of khap panchayat and its validity, the regulation of marriage as per national laws and international conventions, the judgement of the Supreme Court in the given case and the preventive, remedial and punitive measures issued by the Supreme Court.

References

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