In this blog post, Abhiraj Thakur, 1st year Student of NALSAR University of Law, Hyderabad, writes about the problems with currently undertaken attempts to have special laws for dealing with khap panchayats.
The social menace of caste councils or Khap Panchayats which interfere and endanger the freedom of life and liberty of couples marrying within similar Gotra and different caste or religion has existed since a long time in our country. ‘Honor Killing’ has been defined as “incidents of violence and harassment caused to young couple intending to marry or married against wishes of community or family members.”[1] The offending acts taken up by these councils imperil the liberty of young couples in the name of honor and tradition. They adopt the means of ‘moral vigilantism’ and enforce their diktats by granting to themselves the role of societal guardians. 
The cause of such crimes lies in the belief that the consenting parties have brought dishonor and disgrace to the communities by breaching their long-standing traditional values. The thinking that the purity of the clan or community needs to be maintained at any cost be it killing of any human being forms the motive for these crimes. As far as India is concerned, incidents of honor killing are reported mostly from the States of Haryana, Uttar Pradesh, Punjab, and Rajasthan. The socio-politico outlook of Khaps is such that they have scant due for individual liberty and consider themselves outside the pale of law.
Inadequacy of Current Laws
The law of the land as it stands today does not directly hit the actions of such Khap panchayats, and the existing penal provisions fail to have a deterrence or sobering influence on their wrath.[2] Any effective attempt to oppose this socio-cultural evil rooted in authoritarianism and superstition necessarily address various dynamics including the nature of the problem, the inadequacy of present law and the wisdom of using penal sanctions for an otherwise lawful group of people aimed at amicably solving concerns for the society.
Many gruesome cases of honor killings in the past have raised the issue of having separate laws for Khaps. One such instance came during the Manoj-Babli case.[3] The trial court punished five people for a death penalty for murdering a couple marrying against the whims of their caste. The Session Judge is taking a strict stance at the menace of Khaps also handed out imprisonment to the Khap leader. The High Court, however, reduced the punishment to imprisonment ruing the lack of direct evidence against the accused. Had honor killing been a specific offense, the High Court would not have been compelled to reduce the sanction.
Problems with Proposed Legislative Reforms and Judicial Pronouncements
It is felt that such honor crimes can be checked by prohibiting such assembly for the purpose of condemning the marriage and taking a course of harassing them. To serve the purpose Government came up with draft legislation named ‘Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances) Bill, 2011′.[4] The Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances) Bill, 2011 has been the only serious attempt towards a legislative framework to curb the evil of honor crimes. At present, there is no special law and honor killing is treated as murder under Section 300 of the IPC. However, this severely restricts the ring of the crime and many co-accused presents in the unlawful assembly of caste assembly are often let off due to the absence of evidence for direct involvement. The existing homicide law is insufficient to directly punish a gathering for such purpose. 
The Government of India instead of dealing with the entire issue in a comprehensive manner circulated a bill which seeks to include ‘honor killing’ as a separate category of murder under Section 300 of the IPC.[5] It also perpetrates to make the entire assembly liable for any fatwa issued by the panchayat.[6] The bill also seeks to shift the burden of proof on the side of the defense which is problematic in many ways.
The All India Democratic Women’s Association (AIDWA) had submitted a bill for a standalone legislation to be enacted for crimes in the name of ‘honor’ which also received support from The National Commission for Women. It is also relevant to mention that recently around 15 MPs have argued for a separate law on honor killing in the Rajya Sabha However, contrary views have also been expressed especially by legislators from Khap dominated areas for whom these Khaps stand as formidable vote banks.
The 232nd report of the Law Commission had suggested for a legislative framework on “Unlawful interference of caste panchayat with marriages in the name of honor” to make members of Khap liable for criminal intimidation by increasing the punishment provided under the IPC but The Law Commission fails to make the family members of the couples liable even if the crimes committed by them are same as that of Khap Panchayats. The suggested legislation only criminalizes offenses against married couples and not if they are merely living together. The suggestions as such seem to be conservative and unwilling to deal with the issue in totality.
Recently, in Arumugam Servai v. State of Tamil Nadu[7] The Supreme Court deprecated the practice of Khaps taking law into their hands and infringing upon the freedom of life and liberty of young couples. In yet another case, the Supreme Court stated- ‘There is nothing honorable in such killings, and in fact, they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.’[8] However, a recent judgment of the Supreme Court is bound to have far-reaching consequences. It laid down the proposition that honor killing falls within the purview of ‘rarest of the rare cases’ hence deserving death penalties. It was observed that-“All persons who are planning to perpetrate honor killing should know that gallows await them.” Following this judgment, almost all convicted in an honor killing murders have been shown the death knot by the courts in subsequent cases. With utmost respect, the researcher is of the view that this is contrary to the established criminal jurisprudence which has been established by some cases which make death sentences only a last resort only in extreme aggravating and mitigating circumstances.[9] It is submitted that each case must be decided upon facts and merits, and no blanket approach can be imposed towards a consistent death sentence in each case. This rule is bound to create uncertainty in the law of the country.
Possible Solutions
It is thus observed that to check the high-handed and unwarranted interference by caste panchayats with otherwise lawful marriages, the current scheme of legislative and judicial initiatives undertaken are not up to mark. There is a need to punish the congregation of public for an unlawful purpose with a minimum punishment to create deterrence from forming a part of the assembly, However the government has adopted another line of having a separate provision for ‘honor killing’ underSection 300 of the IPC and shifting of burden is unnecessary and will prove futile in the long run.
The Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances) Bill, 2011, needs to shift its focus on prohibiting acts rather than directly punishing them as being proposed. The emphasis of criminalization will make such a piece of social legislation difficult to implement. The social legislations with its emphasis on prohibition rather than criminalization have historically been more effective which can be emulated from colonial Sati and female infanticide laws. It has therefore become necessary to reassert an individual’s right to choose a partner in marriage or a relationship and to punish those who commit acts of violence against individuals exercising this choice through a comprehensive, standalone legislation so as to able citizens to cherish the rights undeterred provided by our Constitution makers.
Footnotes
[1] 242nd Law Commission of India Report
[2] Dipankar Gupta, Tyranny of Cousins, 37(2) India International Central Quarterly 46, 50 (Autumn 2010).
[3] Murder Reference No. 2 of 2010 Criminal Appeal No.479-DB of 2010 and Criminal Revision No. 2173 of
2010.
[4] Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 (pending).
[5] Preamble, The Prevention of Crimes in the Name of ‘Honor’ & Tradition Bill, 2010.
[6] S 2(1), Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances) Bill, 2011.
[7] AIR 2011 SC 1859.
[8] Lata Singh vs. the State of U.P., (2006 5 SCC 475).
[9] Bachan Singh v. State of Punjab AIR 1980 SC 2; Machhi Singh v. the State of Punjab, AIR 1983 SC 957.
The post Current Legal Issues with Having Special Laws for Khap Panchayats appeared first on iPleaders.