# SHAKTI VAHINI v. UNION OF INDIA AND OTHERS

- **Citation:** [2018] 3 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 2018-03-27
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shakti-vahini-v-union-of-india-and-others-32685
- **Pages:** 36

## Headnote

Honour Crimes:
Writ petition - Seeking directions to State Governments and
Central Government to take preventive steps to combat honour
crimes; to submit State and National Plan of Action to curb such
crimes; and seeking direction to the State Governments to constitute
special cells and to launch prosecution in such cases - Held: Any
kind of torture or torment or ill-treatment in the name of honour
that tantamounts to atrophy of choice of an individual relating to
love and marriage by any assembly, whatsoever nomenclature it
assumes, is illegal and cannot be allowed - Consent of the family
or the community or the clan is not necessary, once two adult
individuals agree to enter into a wedlock - It is manifestation of
their choice which is recognized u/Arts. 19 and 21 of the Constitution
- Such constitutional right cannot succumb to the conception of
class honour - Any infringement of such right is constitutional
violation - Khap Panchayat or such assembly should not take the
law into their hands and further cannot assume the character of
the law implementing agency - Law has to be allowed to sustain by
law enforcement agencies - Honour killings are condemned as a
serious human rights violation - Therefore, it is recommended to
the legislature to bring law appositely covering the field of honour
killing - To meet the challenges of agonising affect of honour crime,
there has to be preventive, remedial and punitive measures and hence
the executive and administration of the States to add further measures
to evolve a robust mechanism to the stated purpose - Constitution
of India - Arts 19 and 21.
Words and Phrases:
'Khap panchayat' - Meaning of.
[2018] 3 S.C.R. 770
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Disposing of the Writ Petition, the Court
HELD: 1. Class honour, howsoever perceived, cannot
smother the choice of an individual which he or she is entitled to
enjoy under compassionate Constitution of India. And this right
of enjoyment of liberty deserves to be continually and zealously
guarded so that it can thrive with strength and flourish with
resplendence. The old order has to give way to the new. Feudal
perception has to melt into oblivion paving the smooth path for
liberty. [Para 1] [777-H; 778-A-B]
2. The 242nd Report of Law Commission of India shows the
devastating effect of the crime and the destructive impact on the
right of choice of an individual and the control of the collective
over the said freedom. The Commission has emphasized on the
intense pressure of the powerful community and how they punish
the "sinning couples" according to their socio-cultural perception
and community honour and the action taken by them that results
in extinction of the rights of individuals which are guaranteed
under the Constitution. It has eloquently canvassed about the
autonomy of every person in matters concerning oneself and the
expression of the right which is integral to the said individual.
[Para 27] [790-F-G]
3. The draft Bill namely "the Prohibition of Interference
with the Freedom of Matrimonial Alliance Bill" as recommended
by the Law Commission's 242nd Report, refers to "Khap
Panchayat" to mean any person or group of persons who have
gathered, assembled or congregated at any time with the view or
intention of condemning any marriage, including a proposed
marriage, not prohibited by law, on the basis 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 the people of the locality concerned. [Para 28]
[790-H; 791-A]
4. The protection of rights is pivotal. Though there has
been constant social advancement, yet the problem of honour
killing persists in the same way as history had seen in 1750 BC
under the Code of Hammurabi. The people involved in such
crimes become totally oblivious of the fact that they cannot tread
an illegal path, break the law and offer justification with some
SHAKTI VAHINI v. UNION OF INDIA AND OTHERS
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SHAKTI VAHINI
v.
 UNION OF INDIA AND OTHERS
 (Writ Petition (Civil) No. 231 of 2010)
MARCH 27, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Honour Crimes:
Writ petition - Seeking directions to State Governments and
Central Government to take preventive steps to combat honour
crimes; to submit State and National Plan of Action to curb such
crimes; and seeking direction to the State Governments to constitute
special cells and to launch prosecution in such cases - Held: Any
kind of torture or torment or ill-treatment in the name of honour
that tantamounts to atrophy of choice of an individual relating to
love and marriage by any assembly, whatsoever nomenclature it
assumes, is illegal and cannot be allowed - Consent of the family
or the community or the clan is not necessary, once two adult
individuals agree to enter into a wedlock - It is manifestation of
their choice which is recognized u/Arts. 19 and 21 of the Constitution
- Such constitutional right cannot succumb to the conception of
class honour - Any infringement of such right is constitutional
violation - Khap Panchayat or such assembly should not take the
law into their hands and further cannot assume the character of
the law implementing agency - Law has to be allowed to sustain by
law enforcement agencies - Honour killings are condemned as a
serious human rights violation - Therefore, it is recommended to
the legislature to bring law appositely covering the field of honour
killing - To meet the challenges of agonising affect of honour crime,
there has to be preventive, remedial and punitive measures and hence
the executive and administration of the States to add further measures
to evolve a robust mechanism to the stated purpose - Constitution
of India - Arts 19 and 21.
Words and Phrases:
'Khap panchayat' - Meaning of.
[2018] 3 S.C.R. 770
770
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Disposing of the Writ Petition, the Court
HELD: 1. Class honour, howsoever perceived, cannot
smother the choice of an individual which he or she is entitled to
enjoy under compassionate Constitution of India. And this right
of enjoyment of liberty deserves to be continually and zealously
guarded so that it can thrive with strength and flourish with
resplendence. The old order has to give way to the new. Feudal
perception has to melt into oblivion paving the smooth path for
liberty. [Para 1] [777-H; 778-A-B]
2. The 242nd Report of Law Commission of India shows the
devastating effect of the crime and the destructive impact on the
right of choice of an individual and the control of the collective
over the said freedom. The Commission has emphasized on the
intense pressure of the powerful community and how they punish
the "sinning couples" according to their socio-cultural perception
and community honour and the action taken by them that results
in extinction of the rights of individuals which are guaranteed
under the Constitution. It has eloquently canvassed about the
autonomy of every person in matters concerning oneself and the
expression of the right which is integral to the said individual.
[Para 27] [790-F-G]
3. The draft Bill namely "the Prohibition of Interference
with the Freedom of Matrimonial Alliance Bill" as recommended
by the Law Commission's 242nd Report, refers to "Khap
Panchayat" to mean any person or group of persons who have
gathered, assembled or congregated at any time with the view or
intention of condemning any marriage, including a proposed
marriage, not prohibited by law, on the basis 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 the people of the locality concerned. [Para 28]
[790-H; 791-A]
4. The protection of rights is pivotal. Though there has
been constant social advancement, yet the problem of honour
killing persists in the same way as history had seen in 1750 BC
under the Code of Hammurabi. The people involved in such
crimes become totally oblivious of the fact that they cannot tread
an illegal path, break the law and offer justification with some
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kind of moral philosophy of their own. They forget that the law of
the land requires that the same should be shown implicit
obedience and profound obeisance. The human rights of a
daughter, brother, sister or son are not mortgaged to the socalled or so-understood honour of the family or clan or the
collective. The act of honour killing puts the rule of law in a
catastrophic crisis. [Para 39] [795-D-E]
5. Honour killing is not the singular type of offence
associated with the action taken and verdict pronounced by the
Khap Panchayats. It is a grave one but not the lone one. It is a
part of honour crime. It has to be clearly understood that honour
crime is the genus and honour killing is the species, although a
dangerous facet of it. However, any kind of torture or torment or
ill-treatment in the name of honour that tantamounts to atrophy
of choice of an individual relating to love and marriage by any
assembly, whatsoever nomenclature it assumes, is illegal and
cannot be allowed a moment of existence. [Para 40] [795-F-G]
6. The consent of the family or the community or the clan is
not necessary once the two adult individuals agree to enter into
a wedlock. Their consent has to be piously given primacy. If there
is offence committed by one because of some penal law, that has
to be decided as per law which is called determination of
criminality. It does not recognize any space for informal
institutions for delivery of justice. It is so since a polity governed
by 'Rule of Law' only accepts determination of rights and violation
thereof by the formal institutions set up for dealing with such
situations. It has to be constantly borne in mind that rule of law
as a concept is meant to have order in a society. It respects human
rights. Therefore, the Khap Panchayat or any Panchayat of any
nomenclature cannot create a dent in exercise of the said right.
[Para 41] [795-H; 796-A-C]
Kartar Singh v. State of Punjab (1994) 3 SCC 569 :
[1994] 2 SCR 375 - relied on.
'The Law in Crisis - Bridges of Understanding'
by C.G. Weeramantry - referred to.
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7. Honour killing guillotines individual liberty, freedom of
choice and one's own perception of choice. It has to be sublimely
borne in mind that when two adults consensually choose each
other as life partners, it is a manifestation of their choice which is
recognized under Articles 19 and 21 of the Constitution. Such a
right has the sanction of the constitutional law and once that is
recognized, the said right needs to be protected and it cannot
succumb to the conception of class honour or group thinking which
is conceived of on some notion that remotely does not have any
legitimacy. [Para 42] [796-F-G]
8. The concept of liberty has to be weighed and tested on
the touchstone of constitutional sensitivity, protection and the
values it stands for. It is the obligation of the Constitutional Courts
as the sentinel on qui vive to zealously guard the right to liberty of
an individual as the dignified existence of an individual has an
inseparable association with liberty. Without sustenance of
liberty, subject to constitutionally valid provisions of law, the life
of a person is comparable to the living dead having to endure
cruelty and torture without protest and tolerate imposition of
thoughts and ideas without a voice to dissent or record a
disagreement. The fundamental feature of dignified existence is
to assert for dignity that has the spark of divinity and the
realization of choice within the parameters of law without any kind
of subjugation. The purpose of laying stress on the concepts of
individual dignity and choice within the framework of liberty is of
paramount importance. Life and liberty sans dignity and choice
is a phenomenon that allows hollowness to enter into the
constitutional recognition of identity of a person. [Para 43]
[796-H; 797-A-C]
9. The choice of an individual is an inextricable part of
dignity, for dignity cannot be thought of where there is erosion of
choice. True it is, the same is bound by the principle of
constitutional limitation but in the absence of such limitation, no
one shall be permitted to interfere in the fructification of the said
choice. If the right to express one's own choice is obstructed, it
would be extremely difficult to think of dignity in its sanctified
completeness. When two adults marry out of their volition, they
choose their path; they consummate their relationship; they feel
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that it is their goal and they have the right to do so. Any
infringement of the said right is a constitutional violation.
[Para 44] [707-D-E]
10. The majority in the name of class or elevated honour of
clan cannot call for their presence or force their appearance as if
they are the monarchs of some indescribable era who have the
power, authority and final say to impose any sentence and
determine the execution of the same in the way they desire
possibly harbouring the notion that they are a law unto
themselves. The Constitution and the laws of this country do not
countenance such an act and, in fact, the whole activity is illegal
and punishable as offence under the criminal law. [Para 44]
[797-F-G]
11. The 'Khap Panchayats' or such assembly should not
take the law into their hands and further cannot assume the
character of the law implementing agency, for that authority has
not been conferred upon them under any law. Law has to be
allowed to sustain by the law enforcement agencies. Their
activities are to be stopped in entirety. There is no other
alternative. What is illegal cannot commend recognition or
acceptance. [Para 47] [798-F; 799-A]
12. An assembly or Panchayat committed to engage in any
constructive work that does not offend the fundamental rights of
an individual will not stand on the same footing of Khap
Phanchayat. [Para 49] [799-G]
13. As many as 288 cases of honour killing were reported
between 2014 and 2016. According to the data of National Crime
Records Bureau (NCRB), 28 honour killing cases were reported
in the year 2014, 192 in the year 2015 and 68 in the year 2016.
[Para 49] [800-A]
14. Honour killings are condemned as a serious human
rights violation and are addressed by certain international
instruments. The Council of Europe Convention on Preventing
and Combating Violence Against Women and Domestic Violence
addresses this issue. [Para 50] [800-B]
15. Once the fundamental right is inherent in a person, the
intolerant groups who subscribe to the view of superiority class
complex or higher clan cannot scuttle the right of a person by
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leaning on any kind of philosophy, moral or social, or
self-proclaimed elevation. Therefore, for the sustenance of the
legitimate rights of young couples or anyone associated with them
and keeping in view the role of this Court as the guardian and
protector of the constitutional rights of the citizens and further
to usher in an atmosphere where the fear to get into wedlock
because of the threat of the collective is dispelled, it is
necessary to issue directives. [Para 51] [800-F-G]
Lakshmi Kant Pandey v. Union of India (1984) 2 SCC
244 : [1984] 2 SCR 795 ; Vishaka and others v. State
of Rajasthan and others (1997) 6 SCC 241 : [1997] 3
Suppl. SCR 404 ; Prakash Singh and others v. Union
of India and others (2006) 8 SCC 1 : [ 2006] 6 Suppl.
SCR 473 - relied on.
16. Protection of human rights is the élan vital of our
Constitution that epitomizes humanness and the said conceptual
epitome of humanity completely ostracizes any idea or
prohibition or edict that creates a hollowness in the inalienable
rights of the citizens who enjoy their rights on the foundation of
freedom and on the fulcrum of justice that is fair, equitable and
proportionate. There cannot be any assault on human dignity as
it has the potentiality to choke the majesty of law. Therefore, it is
recommended to the legislature to bring law appositely covering
the field of honour killing. [Para 52] [801-B-C]
Samrendra Beura v. Union of India and others
(2013) 14 SCC 672 : [2013] 3 SCR 781 - relied on.
17. To meet the challenges of the agonising effect of honour
crime, there has to be preventive, remedial and punitive
measures and, accordingly, the Court states the broad contours
and the modalities with liberty to the executive and the police
administration of the concerned States to add further measures
to evolve a robust mechanism for the stated purposes.
[Para 53] [801-G]
Lata Singh v. State of U.P. and another (2006) 5 SCC
475 : [2006] 3 Suppl. SCR 350 ; Arumugam Servai v.
State of Tamil Nadu (2011) 6 SCC 405 : [2011]
5 SCR 488 ; Bhagwan Dass v. State (NCT of Delhi)
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(2011) 6 SCC 396 : [2011] 6 SCR 330 ; Re: India
Woman says Gang-raped on Orders of Village Court
published in Business & Financial News dated
23-1-2014 (2014) 4 SCC 786 :
[2014] 4 SCR 264 ;
Vikas Yadav v. State of Uttar Pradesh and others (2016)
9 SCC 541 : [2016] 8 SCR 872 ; Asha Ranjan v. State
of Bihar and others (2017) 4 SCC 397 ; State of U.P.
v. Krishna Master and others AIR 2010 SC 3071 :
[2010] 9 SCR 563 ; Voluntary Health Association of
Punjab v. Union of India and others (2013) 4 SCC 1 :
[2013] 5 SCR 111 ; Voluntary Health Association of
Punjab v. Union of India and Others (2016) 10 SCC 265
: [2016] 8 SCR 192 ; S. Rangarajan v. P. Jagjivan
Ram and others (1989) 2 SCC 574 : [1989] 2 SCR 204
- referred to.
Case Law Reference
[2006] 3 Suppl. SCR 350
referred to
Para 30
[2011] 5 SCR 488
referred to
Para 32
[2011] 6 SCR 330
referred to
Para 34
[2014] 4 SCR 264
referred to
Para 35
[2016] 8 SCR 872
referred to
Para 36
(2017) 4 SCC 397
referred to
Para 37
[2010] 9 SCR 563
referred to
Para 38
[1994] 2 SCR 375
relied on
Para 42
[2013] 5 SCR 111
referred to
Para 45
[2016] 8 SCR 192
referred to
Para 45
[1989] 2 SCR 204
referred to
Para 48
[1984] 2 SCR 795
relied on
Para 51
[1997] 3 Suppl. SCR 404
relied on
Para 51
[2006] 6 Suppl. SCR 473
relied on
Para 51
[2013] 3 SCR 781
relied on
Para 52
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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 231 of 2010.
Under Article 32 of the Constitution of India.
Ms. Pinky Anand, ASG, Raju Ramachandran, Sr. Adv.(AC),
Narender Hooda, Sr. Adv., Gaurav Agrawal (AC), Ms. Hamsini Shankar,
Ishwar Mohanty, Ravi Kant, Gopi Chand, C.K. Sharma, Sanjeev Kumar,
Prakash Kumar Singh, P.K. Dey, M.K. Maroria, Ms. Suhasini Sen,
Ms. Snidha Mehra, Ms. Sushma Manchanda, Wasim Qadri, Shivani
Luthra Lohiya, Shailender Saini, G.S. Makker, Irshad Ahmad, Vishwa
Pal Singh, Gunnam Venkateswara Rao, Rahul Gupta, Binay Kumar
Tiwari, Hitesh Kumar Sharma, Dipak Namdhari, B.S. Banthia, Mrs.
Anil Katiyar, Gopal Prasad, Ms. Ranjeeta Rohatgi, Abhishek, Ms. Garima
Prasad, Ms. Megha Agarwal, Ajay Marwaha, Daniel Stone Lyngdoh,
Ranjan Mukherjee, Edward Belho, Ms. K. Enatoli Sema, Amit Kumar
Singh, K. Luikang Michael, Ms. Prachi Mishra, Arjun Garg, Chaitanya,
Vikas Saharan, Aviral Dhirendra, S.S. Shamshery, Amit Sharma, Sandeep
Singh, Ankit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Jasbir Singh Malik,
Ms. Usha Nandini, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. Assertion of choice is an insegregable
facet of liberty and dignity. That is why the French philosopher and
thinker, Simone Weil, has said:-
"Liberty, taking the word in its concrete sense consists in the ability
to choose."
When the ability to choose is crushed in the name of class honour
and the person's physical frame is treated with absolute indignity, a chilling
effect dominates over the brains and bones of the society at large. The
question that poignantly emanates for consideration is whether the elders
of the family or clan can ever be allowed to proclaim a verdict guided by
some notion of passion and eliminate the life of the young who have
exercised their choice to get married against the wishes of their elders
or contrary to the customary practice of the clan. The answer has to be
an emphatic "No". It is because the sea of liberty and the ingrained
sense of dignity do not countenance such treatment inasmuch as the
pattern of behaviour is based on some extra-constitutional perception.
Class honour, howsoever perceived, cannot smother the choice of an
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individual which he or she is entitled to enjoy under our compassionate
Constitution. And this right of enjoyment of liberty deserves to be
continually and zealously guarded so that it can thrive with strength and
flourish with resplendence. It is also necessary to state here that the old
order has to give way to the new. Feudal perception has to melt into
oblivion paving the smooth path for liberty. That is how the statement of
Joseph J. Ellis becomes relevant. He has propounded:-
"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."
2. Presently, to the factual score. The instant Writ Petition has
been preferred under Article 32 of the Constitution of India seeking
directions to the respondents-State Governments and the Central
Government to take preventive steps to combat honour crimes, to submit
a National Plan of Action and State Plan of Action to curb crimes of the
said nature and further to direct the State Governments to constitute
special cells in each district which can be approached by the couples for
their safety and well being. That apart, prayers have been made to issue
a writ of mandamus to the State Governments to launch prosecutions in
each case of honour killing and take appropriate measures so that such
honour crimes and embedded evil in the mindset of certain members of
the society are dealt with iron hands.
3. The petitioner-organization was authorized for conducting
Research Study on "Honour Killings in Haryana and Western Uttar
Pradesh" by order dated 22.12.2009 passed by the National Commission
for Women. It is averred that there has been a spate of such honour
killings in Haryana, Punjab and Western Uttar Pradesh and the said
trend is on the increase and such killings have sent a chilling sense of
fear amongst young people who intend to get married but do not enter
into wedlock out of fear. The social pressure and the consequent inhuman
treatment by the core groups who arrogate to themselves the position of
law makers and impose punishments which are extremely cruel instill
immense fear that compels the victims to commit suicide or to suffer
irreparably at the hands of these groups. The egoism in such groups
getting support from similarly driven forces results in their becoming law
unto themselves. The violation of human rights and destruction of
fundamental rights take place in the name of class honour or group right
or perverse individual perception of honour. Such individual or individuals
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consider their behaviour as justified leaning on the theory of socially
sanctioned norms and the legitimacy of their functioning in the guise of
ethicality of the community which results in vigilantism. The assembly
or the collective defines honour from its own perception and describes
the same in such astute cleverness so that its actions, as it asserts, have
the normative justification.
4. It is contended that the existence of a woman in such an
atmosphere is entirely dependent on the male view of the reputation of
the family, the community and the milieu. Sometimes, it is centered on
inherited local ethos which is rationally not discernible. The action of a
woman or a man in choosing a life partner according to her or his own
choice beyond the community norms is regarded as dishonour which, in
the ultimate eventuate, innocently invites death at the cruel hands of the
community prescription. The reputation of a woman is weighed according
to the manner in which she conducts herself, and the family to which the
girl or the woman belongs is put to pressure as a consequence of which
the members of the family, on certain occasions, become silent spectators
to the treatment meted out or sometimes become active participants
forming a part of the group either due to determined behaviour or
unwanted sense of redemption of family pride.
5. The concept of honour with which we are concerned has many
facets. Sometimes, a young man can become the victim of honour killing
or receive violent treatment at the hands of the family members of the
girl when he has fallen in love or has entered into marriage. The collective
behaves like a patriarchal monarch which treats the wives, sisters and
daughters subordinate, even servile or self-sacrificing, persons moving
in physical frame having no individual autonomy, desire and identity. The
concept of status is accentuated by the male members of the community
and a sense of masculine dominance becomes the sole governing factor
of perceptive honour.
6. It is set forth in the petition that the actions which are found to
be linked with honour based crimes are- (i) loss of virginity outside
marriage; (ii) pre-marital pregnancy; (iii) infidelity; (iv) having unapproved
relationships; (v) refusing an arranged marriage; (vi) asking for divorce;
(vii) demanding custody of children after divorce; (viii) leaving the family
or marital home without permission; (ix) causing scandal or gossip in the
community, and (x) falling victim to rape. Expanding the aforesaid aspect,
it is stated that some of the facets relate to inappropriate relationship by
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a woman some of which lead to refusal of arranged marriages. Certain
instances have been cited with regard to honour crimes and how the
said crimes reflect the gruesome phenomena of such incidents. Murder
in day light and brutal treatment in full public gaze of the members of the
society reflect that the victims are treated as inanimate objects totally
oblivious of the law of the land and absolutely unconcerned with the
feelings of the victims who face such cruelty and eventually succumb to
them. The expression of intention by the couples to get married even if
they are adults is sans sense to the members who constitute the assembly,
for according to them, it is the projected honour that rules supreme and
the lives of others become subservient to their desires and decisions.
Instances that have been depicted in the Writ Petition pertain to beating
of people, shaving of heads and sometimes putting the victims on fire as
if they are "flies to the wanton boys". Various news items have been
referred to express anguish with regard to the abominable and horrifying
incidents that the human eyes cannot see and sensitive minds can never
countenance.
7. It is contended in the petition that the parallel law enforcement
agency consists of leading men of a group having the same lineage or
caste which quite often meets to deal with the problems that affect the
group. They call themselves Panchayats which have the power to punish
for the crimes and direct for social boycott or killing by a mob. Sometimes
these Panchayats have the nomenclature of Khap Panchayats which
have cultivated and nurtured the feeling amongst themselves that their
duty is sanctified and their action of punishing the hapless victims is
inviolable. The meetings of the collective and the discussions in the
congregation reflect the level of passion at the highest. It is set forth that
the extra-constitutional bodies which engage in feudalistic activities have
no compunction to commit such crimes which are offences under the
Indian Penal Code. It is because their violent acts have not been taken
cognizance of by the police and their functioning is not seriously
questioned by the administration. The constitutional provisions are shown
scant regard and human dignity is treated at the lowest melting point by
this collective. Article 21 which provides for protection of life and liberty
and guards basic human rights and equality of status has been
unceremoniously shown the exit by the actions of these Panchayats or
the groups who, without the slightest pangs of conscience, subscribe to
honour killing. In this backdrop, prayers have been made as has been
stated hereinbefore.
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8. A counter affidavit has been filed on the behalf of the Union of
India, Ministry of Home Affairs and Ministry of Women and Child
Development, respondent Nos. 1, 2 and 3 respectively. It has been
contended that honour killings are treated as murder as defined under
Section 300 of the IPC and punishable under Section 302 of the IPC. As
the police and public order are State subjects under the Constitution, it is
primarily the responsibility of the States to deal with honour killings. It is
put forth that the Central Government is engaging various States and
Union Territories for considering a proposal to either amend the IPC or
enact a separate legislation to address the menace of honour killing and
related issues.
9. Pursuant to the order of this Court dated 9th September, 2013,
the Union of India has filed another affidavit stating, inter alia, that in
order to tackle the issue of 'honour killings', a Bill titled 'The Prohibition
of Interference with the Freedom of Matrimonial Alliances Bill' has been
recommended by the Law Commission of India vide the 242nd Law
Commission Report. The Union of India has further contended that since
the matter of the 242nd Law Commission Report falls under List III, i.e.,
Concurrent list of the Seventh Schedule to the Constitution of India,
consultation with the Governments of the States and Union Territories is
a sine qua non for taking a policy decision in this regard.
10. In a further affidavit dated 16th January, 2014, the Union of
India has contended that as on the said date, 15 States/UTs have sent
their positive responses, while responses from other remaining States/
UTs were awaited. The Union of India filed an additional affidavit on
25th September, 2014 wherein vide paragraph 4 it is averred that six
more States/UTs have sent positive responses in favour of 'The
Prohibition of Interference with the Freedom of Matrimonial Alliances
Bill' and that reminders have been sent to the remaining States/UTs
whose responses are awaited. Further, it has been submitted that after
receiving comments from the remaining States/UTs, necessary action
shall be taken by the Union of India in the matter. It is the stand of the
Union of India that a draft Bill in consultation with all stakeholders will
be prepared for the avowed purpose as soon as the comments are
received. It has also been set forth that several advisories have been
issued to the State Governments from time to time regarding the steps
needed to prevent crimes against women including special steps to be
taken to curb the menace of honour killing.
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11. An affidavit has been filed by the State of Punjab stating,
inter alia, that it is not taking adversarial position and it does not intend
to be a silent spectator to any form of honour killing and for the said
reason, it has issued Memo No.5/151/10-5H4/2732-80 in the
Department of Home Affairs and Justice laying down and bringing into
force the revised guidelines/policies in order to remove any doubt and to
clear any uncertainty and/or threat prevalent amongst the public at large.
The policy, as put forth, envisages dealing with protection to newly
wedded couples who apprehend danger to life and liberty for at least six
weeks after marriage. It also asserted that the State is determined to
take pre-emptive, protective and corrective measures and whenever
any individual case comes to notice or is highlighted, appropriate action
has been taken and shall also be taken by the Government. That apart,
the reply affidavit reflects that all the culprits of the crime have been
booked under the law and proceeded against.
12. The State of Haryana has filed an affidavit denying the
allegations made against the State and further stating that adequate
protection has been given to couples by virtue of the order of the High
Court and District Courts and sometimes by the police directly coming
to know of the situation. It is contended that FIRs have been lodged
against persons accused of the crime and the cases are progressing as
per law. The stand of the State of Haryana is that an action plan has
already been prepared and the Crime Against Women Cells are
functioning at every district headquarter in the State and necessary
publicity has already been given and the citizens are aware of those
cells.
13. The State of Jharkhand has filed its response stating, inter
alia, the measures taken against persons involved in such crimes. Apart
from asseverating that honour killing is not common in the State of
Jharkhand, it is stated that it shall take appropriate steps to combat such
crimes.
14. A counter affidavit has been filed on behalf of NCT of Delhi.
The affidavit states that Delhi Police does not maintain separate record
for cases under the category of "Honour Killing". However, it has been
mentioned that by the time the affidavit was filed, 11 cases were
registered. It is urged that such cases are handled by the District Police
and there is a special cell functioning within Delhi Police meant for serious
crimes relating to internal security and such cases can be referred to the
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said cell and there is no necessity for constitution of a special cell in
each police district. Emphasis has been laid that Delhi Police has
sensitized the field officers in this regard so that the issues can be handled
with necessary sensitivity and sensibility. The Department of Women
and Child Development has also made arrangements for rehabilitation
of female victims facing threat of honour killing and efforts have been
made to sensitize the society against commission of such crimes. A
circular dealing with the subject 'Action to be taken to prevent cases of
"Honour Killing"' has been brought on record.
15. The State of Rajasthan, in its reply, had strongly deplored the
exercise of unwarranted activities under the garb of khap panchayats.
The State of Rajasthan contends that it has issued circulars to the police
personnel to keep a check on the activities of the panchayats and further
expressed its willingness to abide by any guidelines that may be issued
by this Court to ameliorate and curb the evil of honour killing that subsists
in our society.
16. The State of Uttar Pradesh has filed two counter affidavits
wherein it is stated that it is the primary duty of the States to protect the
Fundamental Rights enshrined and guaranteed under the Constitution of
India. It is further contended that although there is no specific legislation
to regulate and prevent "honour killing", yet effective measures under
the present law are being taken by the State to control the same. The
said measures are in the nature of directions and guidelines to the law
enforcement agencies. Further, the State of Uttar Pradesh has brought
on record that there have been no reported cases of "honour killing" or
"social ostracizing" in the State for the period from 01.01.2010 till
31.12.2012. Yet, time and again, directions are being given to the police
stations to keep a close watch on the activities and functioning of the
Khaps. The State of Uttar Pradesh has acceded to comply with any
directions which this Court may issue.
17. The State of Bihar has, in its affidavit, acknowledged that
honour killing is a heinous crime which violates the fundamental rights of
the citizens. Although the State of Bihar has taken the stance that cases
of honour killing in the State are almost nil, yet a list of five cases which
may assume the character of honour killing have been mentioned in the
affidavit. The State has further averred that several reformative steps
have been taken for the upliftment and empowerment of women and
constant efforts are being made to sensitize people. It has been asserted
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that the State of Bihar has initiated a scheme to provide National Saving
Certificate amounting to Rs. 25,000/- as incentive to any woman
performing inter-caste marriage in order to ensure their economic stability.
18. It has been contended by the State of Madhya Pradesh that
the State Government and the police are alive to the problem of honour
killings and they have created a "Crime Against Women Cell" at the
State level headed by the Inspector General of Police to ensure safety
of couples and active prosecution in each case of honour killing. The
M.P. Government, vide order no. F/21-261/10 dated 27.01.2011, has
issued specific instructions to the District Magistrates/Superintendent of
Police for taking strict action in cases of honour killing.
19. It is the contention of the State of Himachal Pradesh that
there are no Panchayats of the nature of Khap Panchayats operating in
the State of Himachal Pradesh and that there have been no cases of
honour killing reported in the past 10 years. The State avers that several
measures are being taken to combat the social evils prevailing in the
society.
20. An application for intervention, on behalf of several Khap
Panchayats, filed by "Manushi Sanghatan" has been allowed. It has
been averred by Manushi Sanghatan that, on being requested by the
media to voice their concern on the activities of Khap panchayats, the
Sanghatan has conducted a survey into the functioning of the Khap
Panchayats, but they were unable to find any evidence to hold the Khap
Panchayats responsible for honour killings occurring in the country. In
this factual background, the Sanghatan contends that the proposed bill,
"The Prohibition of Interference with the Freedom of Matrimonial
Alliances Bill', is a futile exercise in view of the ample existing penal
provisions and it is stated that the powers that the said bill aims to stipulate
may have the result of giving power to vested interests to harass well
meant gatherings of local communities. The intervenor has also challenged
the findings of the report of the petitioner on various grounds.
21. The petitioner has filed a rejoinder affidavit wherein it has
been highlighted that this Court has taken cognizance of the brutal killings
that take place in the name of honour and it is urged that although some
States have formed an Action Plan in pursuance of the directions issued
by this Court, yet they have failed to effectively implement the same in
letter and spirit. In view of this fact, effective guidelines to the police
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and law enforcement agencies to curb the menace of honour killing
need to be formulated and implemented.
22. From the stand taken by the concerned States, it is perceivable
that the authorities, while denying the incidences being visible, do not
dispute the sporadic happenstance of such occurrences and speak in a
singular voice by decrying such acts. It is also clear that some such
Panchayats take the positive stance demonstrating their collective effort
as to how they cultivate in people the idea of inter-caste marriage and
community acceptance. The duty of this Court, in view of the authorities
in the field that deal with specific circumstances, is to view the scenario
from the prism of pragmatic ground reality as has been projected and to
act within the constitutional parameters to protect the liberty and life of
citizens. Commitment to the constitutional values requires this Court to
be sensitive and act in such a matter and we shall do so within the
permissible boundaries and framework because as the guardian of the
rights of the citizens, this Court cannot choose the path of silence.
23. Before we engage ourselves in the process what we have
stated hereinabove and refer to the earlier decisions of this Court, we
think it apt to refer to the 242nd Report submitted by the Law Commission
of India, namely, "Prevention of Interference with the Freedom of
Matrimonial Alliances (in the name of Honour and Tradition): A Suggested
Legal Framework". The relevant extracts of the Report read as follows:-
"1.2 At the outset, it may be stated that the words 'honour killings'
and 'honour crimes' are being used loosely as convenient
expressions to describe the incidents of violence and harassment
caused to the young couple intending to marry or having married
against the wishes of the community or family members. They
are used more as catch phrases and not as apt and accurate
expressions.
1.3 The so-called 'honour killings' or 'honour crimes' are not
peculiar to our country. It is an evil which haunts many other
societies also. The belief that the victim has brought dishonour
upon the family or the community is the root cause of such violent
crimes. Such violent crimes are directed especially against women.
Men also become targets of attack by members of family of a
woman with whom they are perceived to have an 'inappropriate
relationship'. Changing cultural and economic status of women
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and the women going against their male dominated culture has
been one of the causes of honour crimes. In some western cultures,
honour killings often arise from women seeking greater
independence and choosing their own way of life. In some cultures,
honour killings are considered less serious than other murders
because they arise from long standing cultural traditions and are
thus deemed appropriate or justifiable. An adulterous behaviour
of woman or pre-marital relationship or assertion of right to marry
according to their choice, are widely known causes for honour
killings in most of the countries. The report of the Special
Rapporteur to U.N.1 of the year 2002 concerning cultural practices
in the family that are violent towards women indicated that honour
killings had been reported in Jordon, Lebanon, Morocco, Pakistan,
United Arab Republic, Turkey, Yemen and other Persian Gulf
countries and that they had also taken place in western countries
such as France, Germany and U.K. mostly within migrant
communities. The report "Working towards the elimination of
crimes against women committed in the name of honour"2
submitted to the United Nations High Commissioner for Human
Rights is quite revealing. Apart from the other countries named
above, according to the UN Commission on Human Rights, there
are honour killings in the nations of Bangladesh, Brazil, Ecuador,
India, Israel, Italy, Morocco, Sweden, Turkey and Uganda.
According to Mr. Widney Brown, Advocacy Director for Human
Rights Watch, the practice of honour killing "goes across cultures
and across religions". There are reports that in some communities,
many are prepared to condone the killing of someone who have
dishonoured their family. The 2009 European Parliamentary
Assembly noted the rising incidents of honour crimes with concern.
In 2010, Britain saw a 47% rise of honour-related crimes. Data
from police agencies in the UK report 2283 cases in 2010 and
most of the attacks were conducted in cities that had high immigrant
populations.