By ALSEENA JOSEPH from Sree Narayana Law College, Poothotta
BENCH : CJI Dipak Mishra, Justice A M Khanwilkar, Justice D Y Chandrachud.
PETITIONER : Shakti Vahini
RESPONDENTS : 1. Union of India
2.Ministry of Home Affairs
3.Ministry of Women & Children
DATE OF JUDGMENT : MARCH 27, 2018
Shakti Vahini v. Union of India is a landmark case, verdict of the Apex Court of India in the year 2018. The State governments, and the police department have been directed to make a strong mechanism in the society in order to eliminate the crime of the Honour Killing. Further, the court laid down some remedies and preventive measures for the state governments and the police department to build a strong system.
Shakti Vahini is an organization who was asked to conduct research on Honour Killing in the states, i.e. “Haryana, Punjab and Western Uttar Pradesh” by the National Commission for Women on 22.12.2009. It was affirmed there was a series of honour killings in these states of India. During the research it was observed that this trend of crimes leads to increase fear amongst the youth who fall in love against the rules and the wills of the core group in the community and out of fear they even refuse to enter into a wedlock with the one they choose as their partner.
“Honour Killing” is a major issue which has been burgeoning in several parts throughout the nation. The Panchayats, which perform this crime considers it as their duty to punish the one who go against the rituals or rules of the Panchayat. This Panchayat is also known as Khap Panchayat. In this society the female is entirely dependent on the male members. The reputation of the women is weighed in the community, according to the manner she conducts herself in the society. Here both the woman and man can’t choose their life partner against the willingness of the elder people in the family. If a woman chooses her life partner out of her community or caste then it is considered as dishonoured in the community and would face cause of their actions which would ultimately result death or any other punishments prescribed by the community.
The honour killing has many aspects in the society. In most of the cases the man becomes the victim of honour killing, or receive inhuman treatment from the girl’s family members only because they have fallen in love with each other or entered into a wedlock. It doesn’t mean that only man faces this crime, but also woman faces brutal and inhuman treatment from the part of community for going against the will of the community. Meetings were conducted by the khap panchayat to impose the punishments against the dishonour performed by a woman and man in the community. A Patriarchal behaviour is found in this system, where the wives, sisters, and daughters are treated as subordinates to male members of the family. Moreover, the female member has no right to express her views and opinions in society. They should move according to wills and physical frames given by the male members. In short, it is observed that the female member has no identity in the community duty is to look after children and home and work according to the wills of male members.
There are various other factors which are connected with the honour killing other than unapproved marriage’s or relationship in the society. They are the following (i) loss of virginity before coming into a wedlock; (ii) premarital pregnancy; (iii) infidelity; (iv) leaving the family without permission; (v) asking for divorce, and demanding custody of children after divorce; (vi) causing scandal or gossip in the community; (vii) falling victim of rape. All the above reasons may cause to some sort of instability or crime in the society. Hence, we can quote that “The Sole governing factor of honour crime is the concept of status between the prominent members of the community and their dominance.”
A writ petition under Article 32 of the Indian Constitution was filed by an organization named Shakti Vahini against the norms of honour Killings. They conducted research regarding the crimes in the states of Haryana, Punjab and Western U. P. While conducting the research, they have found social pressure and the consequent inhuman treatment in the community by the members of the Khap panchayat constituted towards the victims of honour crimes. They assume themselves as the law makers and the imposers of punishment for those who go against their law. By the inhuman treatments made by them leads to immense fear among the victims which result in suicide. Mostly the concept was performed in state of Haryana, Punjab and Western U. P and also, in some places of Bihar, Delhi and Tamil Nadu. The petition made by the organization was seeking directions to the state and central government for implementing preventive measures with regard to honour crimes performed in the states. And the central and state governments were asked to submit a National Plan of Action, and State Plan of Action to restrain the crimes of the honour killing, and also directed the State Government to form a special cell in each district. For the security and well-being, the victims of menaces of honour killing can approach the special cells established by the State Governments for their security and well-being. Another writ of Mandamus was filed by the victims seeking to launch prosecutions in each case of Honour Killing in the society. The writ also asked the government of the state to take relevant measures regarding the crimes.
- Whether the system of Khap Panchayat is violation of the fundamental Rights provided under the Indian Constitution?
- Does the individual get their right to choose a life partner to the fullest?
In this petition it is contended that the Panchayat was an enforcement agency which consists of leading group of men in the community who belong to the same caste or lineage. They often deal with the problems which are raised in the community. This Panchayat is known as Khap Panchayat which have the power to punish for the wrong doing done by the victims. The main punishments given by them are murdering the victims in the day light and also imposing inhuman treatment like beating, shaving of the heads or putting the victim on fire in the public place, so that it will be a warning for the other who disapprove or go against the law of land. The feelings of the victims are not concerned in the community. For the community, prestige and rules are given more important rather than ones feeling. Here the lives of other members are under the control or the desires of the prominent people of the group, they decide what to do and not to do in the community. The feudalistic activities conducted by the bodies are considered unconstitutional and offensive under Indian Penal Code, 1860.The human right and the fundamental right i.e., Article 21 “Protection of life and personal liberty” under the Indian Constitution are violated by these core groups in the community. Hence, equality of status has been affected or not taken care by these Panchayat.
On behalf of the respondents a counter affidavit has been filed in the apex court. It was contented that the ‘Honour killings’ is treated as murder, contented under the sections 300 and 302 of the Indian Penal Code. Under the constitution police and the public are the subjects of the state, it is the prime responsibility of the states to deal with the Honour killing. The central government has put forward the proposal to the state governments and union territories either to amend the Indian Penal Code or to enact a separate legislation to eliminate the crimes, and issues related to honour killing.
The subject of the reports submitted by the 242nd law commission comes under concurrent list of the seventh schedule of Indian constitution. In Consultation between the state governments and union territories an essential condition was to be taken about the policy decision. Although Some states have formed an action plan in the name of execution of the court, but it couldn’t to be the fullest in the same sense of letter and spirit. Hence, the action plan couldn’t work out as it was considered. This leads to a need of an effective guideline which is to be drawn up and implemented to restrain the menace of honour killing by police and law enforcement agencies. It was said there must be a strong system which helps to prevent the honour crimes in the society, and will provide adequate support to the victims facing the challenge of the crime from the core group namely the khap Panchayat.
CJI Dipak Mishra in his judgment quoted some lines of French philosopher and thinker, Simone Weil which are: “We don’t live in a world in which there exists a single definition of honour anymore, and it’s a fool that hangs on to the traditional standards and hopes that the world will come around him.”
The tread of honour killing is increasing as per the research reports and such honour killings have created a bad impact in the minds of the young people which result to enforcement of their fundamental right i.e. right to choose their life partner. There is violation of both human rights as well as enforcement of fundamental right for the sake of class honour. Those individuals who performs such class honours justify themselves as they are safeguarding their rituals and the social norms of their community. By performing such crimes related to honour is to protect the legitimacy of their functions. They define honour killing from their own perception. It was observed that the practice of honour killing is unconstitutional as it is violation of fundamental right provided under the Indian constitution and the entire activity performed by the community is illegal and punishable under the provisions of the Indian Penal Code.
The 242nd report was referred by the court. In their view there is no need of introducing a provision or amending Section 300 of the Indian Penal Code,1860 in order to bring so called ‘Honour Killing’ within the ambit of this provision. According to this report, it was observed that the existing provision in IPC, 1860 itself is sufficient enough to deal with situations leading with Honour killing and other crimes related to this crime in the community. The commission suggested a new law instead of amending the Indian Penal Code,1860 to tackle the problem namely” Prohibition of Interference with Freedom of Matrimonial Alliances Bill 2011”: A suggested legal framework. The core group or assembly is mainly made when the young person’s get married according with their own choice against the will of the core group or any other dishonour caused in the community these all leads to imposing punishments. Therefore, to prevent such honour crimes present in the community the bill drafted by the commission stated the idea underlying the provisions that there must be a bar against those unlawful assembly conducted and activities performed. The assembly is conducted for an unlawful purpose and their actions are conflicting to the lives and liberties of the individuals in the society. If any such conduct is found in the society it is punishable under the Indian penal code for commission of offenses including abatement and conspiracy.
The court used various cases during the verdict which includes ‘Lata Singh v. State of U.P. and Another’, a case of writ of certiorari/ mandamus where the petitioner and her husband where allowed to give protection who were under the danger of honour killing. ‘Asha Ranjan v. State of Bihar’, another where the court held that “the choice of a woman to choose her partner in life is a licit constitutional right”. And this right is recognized under Article 19 of the Constitution and such right couldn’t deny as to the concept of ‘class honour’. Further, In the case ’State of U.P. v. Krishna Master’, the court the accused where rewarded with rigorous imprisonment for life and a fine of 25,000/-.
The Supreme Court of India held that every individual has the right to choose their life partner recognized under the Article 19 and 21 of the Indian Constitution and no one has the right to deny the right provided. They also observed the ill-treatment and torture in the name of honour by any assembly is considered illegal and are punishable under the code. The court also issued detailed preventive, remedial and punitive directives to prevent the honour killing and also directed the states to carry out these instructions given within 6 weeks of the judgment.
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