SHAKTI VAHINI versus UNION OF INDIA AND OTHERS

[2018] 3 S.C.R.

SHAKTI VAHINI

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 231 of 2010)

MARCH 27, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Honour Crimes:

CWrit petition – Seeking directions to State Governments andCentral Government to take preventive steps to combat honourcrimes; to submit State and National Plan of Action to curb suchcrimes; and seeking direction to the State Governments to constitutespecial cells and to launch prosecution in such cases – Held: Anykind of torture or torment or ill-treatment in the name of honourDthat tantamounts to atrophy of choice of an individual relating tolove and marriage by any assembly, whatsoever nomenclature itassumes, is illegal and cannot be allowed – Consent of the familyor the community or the clan is not necessary, once two adultindividuals agree to enter into wedlock – It is manifestation ofEtheir choice which is recognized u/Arts. 19 and 21 of the Constitution– Such constitutional right cannot succumb to the conception ofclass honour – Any infringement of such right is constitutionalviolation – Khap Panchayat or such assembly should not take thelaw into their hands and further cannot assume the character ofthe law implementing agency – Law has to be allowed to sustain byFlaw enforcement agencies – Honour killings are condemned as aserious human rights violation – Therefore, it is recommended tothe legislature to bring law appositely covering the field of honourkilling – To meet the challenges of agonising affect of honour crime,there has to be preventive, remedial and punitive measures and henceGthe executive and administration of the States to add further measuresto evolve robust mechanism to the stated purpose – Constitutionof India – Arts 19 and 21.

Words and Phrases:

‘Khap panchayat’ – Meaning of.

Disposing of the Writ Petition, the Court

HELD: 1. Class honour, howsoever perceived, cannotsmother the choice of an individual which he or she is entitled toenjoy under compassionate Constitution of India. And this rightof enjoyment of liberty deserves to be continually and zealouslyguarded so that it can thrive with strength and flourish withresplendence. The old order has to give way to the new. Feudalperception has to melt into oblivion paving the smooth path forliberty. [Para 1] [777-H; 778-A-B]

2. The 242[nd] Report of Law Commission of India shows thedevastating effect of the crime and the destructive impact on theright of choice of an individual and the control of the collectiveover the said freedom. The Commission has emphasized on theintense pressure of the powerful community and how they punishthe “sinning couples” according to their socio-cultural perceptionand community honour and the action taken by them that resultsin extinction of the rights of individuals which are guaranteedunder the Constitution. It has eloquently canvassed about theautonomy of every person in matters concerning oneself and theexpression of the right which is integral to the said individual.[Para 27] [790-F-G]

3. The draft Bill namely “the Prohibition of Interferencewith the Freedom of Matrimonial Alliance Bill” as recommendedby the Law Commission’s 242[nd] Report, refers to “KhapPanchayat” to mean any person or group of persons who havegathered, assembled or congregated at any time with the view orintention of condemning any marriage, including proposedmarriage, not prohibited by law, on the basis that such marriagehas dishonoured the caste or community tradition or broughtdisrepute to all or any of the persons forming part of the assemblyor the family or the people of the locality concerned. [Para 28][790-H; 791-A]4. The protection of rights is pivotal. Though there hasbeen constant social advancement, yet the problem of honourkilling persists in the same way as history had seen in 1750 BCunder the Code of Hammurabi. The people involved in suchcrimes become totally oblivious of the fact that they cannot treadan illegal path, break the law and offer justification with some

Akind of moral philosophy of their own. They forget that the law ofthe land requires that the same should be shown implicitobedience and profound obeisance. The human rights of adaughter, brother, sister or son are not mortgaged to the so-called or so-understood honour of the family or clan or thecollective. The act of honour killing puts the rule of law in aBcatastrophic crisis. [Para 39] [795-D-E]

5. Honour killing is not the singular type of offenceassociated with the action taken and verdict pronounced by theKhap Panchayats. It is grave one but not the lone one. It is apart of honour crime. It has to be clearly understood that honourCcrime is the genus and honour killing is the species, although adangerous facet of it. However, any kind of torture or torment orill-treatment in the name of honour that tantamounts to atrophyof choice of an individual relating to love and marriage by anyassembly, whatsoever nomenclature it assumes, is illegal andDcannot be allowed moment of existence. [Para 40] [795-F-G]

6. The consent of the family or the community or the clan isnot necessary once the two adult individuals agree to enter intoa wedlock. Their consent has to be piously given primacy. If thereis offence committed by one because of some penal law, that hasEto be decided as per law which is called determination ofcriminality. It does not recognize any space for informalinstitutions for delivery of justice. It is so since polity governedby ‘Rule of Law’ only accepts determination of rights and violationthereof by the formal institutions set up for dealing with suchsituations. It has to be constantly borne in mind that rule of lawFas concept is meant to have order in society. It respects humanrights. Therefore, the Khap Panchayat or any Panchayat of anynomenclature cannot create dent in exercise of the said right.[Para 41] [795-H; 796-A-C]

Kartar Singh v. State of Punjab (1994) 3 SCC 569 :G[1994] 2 SCR 375 – relied on.

‘The Law in Crisis – Bridges of Understanding’by C.G. Weeramantry – referred to.

7. Honour killing guillotines individual liberty, freedom ofchoice and one’s own perception of choice. It has to be sublimelyborne in mind that when two adults consensually choose eachother as life partners, it is manifestation of their choice which isrecognized under Articles 19 and 21 of the Constitution. Such aright has the sanction of the constitutional law and once that isrecognized, the said right needs to be protected and it cannotsuccumb to the conception of class honour or group thinking whichis conceived of on some notion that remotely does not have anylegitimacy. [Para 42] [796-F-G]8. The concept of liberty has to be weighed and tested onthe touchstone of constitutional sensitivity, protection and thevalues it stands for. It is the obligation of the Constitutional Courtsas the sentinel on qui vive to zealously guard the right to liberty ofan individual as the dignified existence of an individual has aninseparable association with liberty. Without sustenance ofliberty, subject to constitutionally valid provisions of law, the lifeof person is comparable to the living dead having to endurecruelty and torture without protest and tolerate imposition ofthoughts and ideas without voice to dissent or record adisagreement. The fundamental feature of dignified existence isto assert for dignity that has the spark of divinity and therealization of choice within the parameters of law without any kindof subjugation. The purpose of laying stress on the concepts ofindividual dignity and choice within the framework of liberty is ofparamount importance. Life and liberty sans dignity and choiceis phenomenon that allows hollowness to enter into theconstitutional recognition of identity of person. [Para 43][796-H; 797-A-C]

9. The choice of an individual is an inextricable part ofdignity, for dignity cannot be thought of where there is erosion ofchoice. True it is, the same is bound by the principle ofconstitutional limitation but in the absence of such limitation, noone shall be permitted to interfere in the fructification of the saidchoice. If the right to express one’s own choice is obstructed, itwould be extremely difficult to think of dignity in its sanctifiedcompleteness. When two adults marry out of their volition, theychoose their path; they consummate their relationship; they feel

Athat it is their goal and they have the right to do so. Anyinfringement of the said right is constitutional violation.[Para 44] [707-D-E]

10. The majority in the name of class or elevated honour ofclan cannot call for their presence or force their appearance as ifBthey are the monarchs of some indescribable era who have thepower, authority and final say to impose any sentence anddetermine the execution of the same in the way they desirepossibly harbouring the notion that they are law untothemselves. The Constitution and the laws of this country do notcountenance such an act and, in fact, the whole activity is illegalCand punishable as offence under the criminal law. [Para 44][797-F-G]

11. The ‘Khap Panchayats’ or such assembly should nottake the law into their hands and further cannot assume thecharacter of the law implementing agency, for that authority hasDnot been conferred upon them under any law. Law has to beallowed to sustain by the law enforcement agencies. Theiractivities are to be stopped in entirety. There is no otheralternative. What is illegal cannot commend recognition oracceptance. [Para 47] [798-F; 799-A]

E12. An assembly or Panchayat committed to engage in anyconstructive work that does not offend the fundamental rights ofan individual will not stand on the same footing of KhapPhanchayat. [Para 49] [799-G]

13. As many as 288 cases of honour killing were reportedbetween 2014 and 2016. According to the data of National CrimeFRecords Bureau (NCRB), 28 honour killing cases were reportedin the year 2014, 192 in the year 2015 and 68 in the year 2016.[Para 49] [800-A]

14. Honour killings are condemned as serious humanrights violation and are addressed by certain internationalGinstruments. The Council of Europe Convention on Preventingand Combating Violence Against Women and Domestic Violenceaddresses this issue. [Para 50] [800-B]

15. Once the fundamental right is inherent in person, theintolerant groups who subscribe to the view of superiority classHcomplex or higher clan cannot scuttle the right of person by

leaning on any kind of philosophy, moral or social, orself-proclaimed elevation. Therefore, for the sustenance of thelegitimate rights of young couples or anyone associated with themand keeping in view the role of this Court as the guardian andprotector of the constitutional rights of the citizens and furtherto usher in an atmosphere where the fear to get into wedlockbecause of the threat of the collective is dispelled, it isnecessary to issue directives. [Para 51] [800-F-G]

Lakshmi Kant Pandey v. Union of India (1984) 2 SCC244 : [1984] 2 SCR 795 ; Vishaka and others v. Stateof Rajasthan and others (1997) 6 SCC 241 : [1997] 3Suppl. SCR 404 ; Prakash Singh and others v. Unionof India and others (2006) 8 SCC 1 : [ 2006] 6 Suppl.SCR 473 – relied on.

16. Protection of human rights is the élan vital of ourConstitution that epitomizes humanness and the said conceptualepitome of humanity completely ostracizes any idea orprohibition or edict that creates hollowness in the inalienablerights of the citizens who enjoy their rights on the foundation offreedom and on the fulcrum of justice that is fair, equitable andproportionate. There cannot be any assault on human dignity asit has the potentiality to choke the majesty of law. Therefore, it isrecommended to the legislature to bring law appositely coveringthe 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 honourcrime, there has to be preventive, remedial and punitivemeasures and, accordingly, the Court states the broad contoursand the modalities with liberty to the executive and the policeadministration of the concerned States to add further measuresto evolve robust mechanism for the stated purposes.[Para 53] [801-G]

Lata Singh v. State of U.P. and another (2006) 5 SCC475 : [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)

A(2011) 6 SCC 396 : [2011] 6 SCR 330 ; Re: IndiaWoman says Gang-raped on Orders of Village Courtpublished in Business & Financial News dated23-1-2014 (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. StateBof 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 ofPunjab v. Union of India and others (2013) 4 SCC 1 :[2013] 5 SCR 111 ; Voluntary Health Association ofCPunjab v. Union of India and Others (2016) 10 SCC 265: [2016] 8 SCR 192 ; S. Rangarajan v. P. JagjivanRam and others (1989) 2 SCC 574 : [1989] 2 SCR 204– referred to.

Case Law Reference

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, ShivaniLuthra Lohiya, Shailender Saini, G.S. Makker, Irshad Ahmad, VishwaPal Singh, Gunnam Venkateswara Rao, Rahul Gupta, Binay KumarTiwari, Hitesh Kumar Sharma, Dipak Namdhari, B.S. Banthia, Mrs.Anil Katiyar, Gopal Prasad, Ms. Ranjeeta Rohatgi, Abhishek, Ms. GarimaPrasad, Ms. Megha Agarwal, Ajay Marwaha, Daniel Stone Lyngdoh,Ranjan Mukherjee, Edward Belho, Ms. K. Enatoli Sema, Amit KumarSingh, K. Luikang Michael, Ms. Prachi Mishra, Arjun Garg, Chaitanya,Vikas Saharan, Aviral Dhirendra, S.S. Shamshery, Amit Sharma, SandeepSingh, 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 insegregablefacet of liberty and dignity. That is why the French philosopher andthinker, Simone Weil, has said:-

“Liberty, taking the word in its concrete sense consists in the abilityto choose.”

When the ability to choose is crushed in the name of class honourand the person’s physical frame is treated with absolute indignity, chillingeffect dominates over the brains and bones of the society at large. Thequestion that poignantly emanates for consideration is whether the eldersof the family or clan can ever be allowed to proclaim verdict guided bysome notion of passion and eliminate the life of the young who haveexercised their choice to get married against the wishes of their eldersor contrary to the customary practice of the clan. The answer has to bean emphatic “No”. It is because the sea of liberty and the ingrainedsense of dignity do not countenance such treatment inasmuch as thepattern of behaviour is based on some extra-constitutional perception.Class honour, howsoever perceived, cannot smother the choice of an

Aindividual which he or she is entitled to enjoy under our compassionateConstitution. And this right of enjoyment of liberty deserves to becontinually and zealously guarded so that it can thrive with strength andflourish with resplendence. It is also necessary to state here that the oldorder has to give way to the new. Feudal perception has to melt intooblivion paving the smooth path for liberty. That is how the statement ofBJoseph J. Ellis becomes relevant. He has propounded:-

“We don’t live in world in which there exists single definitionof honour anymore, and it’s fool that hangs on to the traditionalstandards and hopes that the world will come around him.”

C2. Presently, to the factual score. The instant Writ Petition hasbeen preferred under Article 32 of the Constitution of India seekingdirections to the respondents-State Governments and the CentralGovernment to take preventive steps to combat honour crimes, to submita National Plan of Action and State Plan of Action to curb crimes of thesaid nature and further to direct the State Governments to constituteDspecial cells in each district which can be approached by the couples fortheir safety and well being. That apart, prayers have been made to issuea writ of mandamus to the State Governments to launch prosecutions ineach case of honour killing and take appropriate measures so that suchhonour crimes and embedded evil in the mindset of certain members ofEthe society are dealt with iron hands.3. The petitioner-organization was authorized for conductingResearch Study on “Honour Killings in Haryana and Western UttarPradesh” by order dated 22.12.2009 passed by the National Commissionfor Women. It is averred that there has been spate of such honourFkillings in Haryana, Punjab and Western Uttar Pradesh and the saidtrend is on the increase and such killings have sent chilling sense offear amongst young people who intend to get married but do not enterinto wedlock out of fear. The social pressure and the consequent inhumantreatment by the core groups who arrogate to themselves the position oflaw makers and impose punishments which are extremely cruel instillGimmense fear that compels the victims to commit suicide or to sufferirreparably at the hands of these groups. The egoism in such groupsgetting support from similarly driven forces results in their becoming lawunto themselves. The violation of human rights and destruction offundamental rights take place in the name of class honour or group rightHor perverse individual perception of honour. Such individual or individuals

consider their behaviour as justified leaning on the theory of sociallysanctioned norms and the legitimacy of their functioning in the guise ofethicality of the community which results in vigilantism. The assemblyor the collective defines honour from its own perception and describesthe same in such astute cleverness so that its actions, as it asserts, havethe normative justification.

4. It is contended that the existence of woman in such anatmosphere is entirely dependent on the male view of the reputation ofthe family, the community and the milieu. Sometimes, it is centered oninherited local ethos which is rationally not discernible. The action of awoman or man in choosing life partner according to her or his ownchoice beyond the community norms is regarded as dishonour which, inthe ultimate eventuate, innocently invites death at the cruel hands of thecommunity prescription. The reputation of woman is weighed accordingto the manner in which she conducts herself, and the family to which thegirl or the woman belongs is put to pressure as consequence of whichthe members of the family, on certain occasions, become silent spectatorsto the treatment meted out or sometimes become active participantsforming part of the group either due to determined behaviour orunwanted sense of redemption of family pride.

5. The concept of honour with which we are concerned has manyfacets. Sometimes, young man can become the victim of honour killingor receive violent treatment at the hands of the family members of thegirl when he has fallen in love or has entered into marriage. The collectivebehaves like patriarchal monarch which treats the wives, sisters anddaughters subordinate, even servile or self-sacrificing, persons movingin physical frame having no individual autonomy, desire and identity. Theconcept of status is accentuated by the male members of the communityand sense of masculine dominance becomes the sole governing factorof perceptive honour.

6. It is set forth in the petition that the actions which are found tobe linked with honour based crimes are- (i) loss of virginity outsidemarriage; (ii) pre-marital pregnancy; (iii) infidelity; (iv) having unapprovedrelationships; (v) refusing an arranged marriage; (vi) asking for divorce;(vii) demanding custody of children after divorce; (viii) leaving the familyor marital home without permission; (ix) causing scandal or gossip in thecommunity, and (x) falling victim to rape. Expanding the aforesaid aspect,it is stated that some of the facets relate to inappropriate relationship by

Aa woman some of which lead to refusal of arranged marriages. Certaininstances have been cited with regard to honour crimes and how thesaid crimes reflect the gruesome phenomena of such incidents. Murderin day light and brutal treatment in full public gaze of the members of thesociety reflect that the victims are treated as inanimate objects totallyoblivious of the law of the land and absolutely unconcerned with theBfeelings of the victims who face such cruelty and eventually succumb tothem. The expression of intention by the couples to get married even ifthey are adults is sans sense to the members who constitute the assembly,for according to them, it is the projected honour that rules supreme andthe lives of others become subservient to their desires and decisions.CInstances that have been depicted in the Writ Petition pertain to beatingof people, shaving of heads and sometimes putting the victims on fire asif they are “flies to the wanton boys”. Various news items have beenreferred to express anguish with regard to the abominable and horrifyingincidents that the human eyes cannot see and sensitive minds can nevercountenance.D

7. It is contended in the petition that the parallel law enforcementagency consists of leading men of group having the same lineage orcaste which quite often meets to deal with the problems that affect thegroup. They call themselves Panchayats which have the power to punishfor the crimes and direct for social boycott or killing by mob. SometimesEthese Panchayats have the nomenclature of Khap Panchayats whichhave cultivated and nurtured the feeling amongst themselves that theirduty is sanctified and their action of punishing the hapless victims isinviolable. The meetings of the collective and the discussions in thecongregation reflect the level of passion at the highest. It is set forth thatFthe extra-constitutional bodies which engage in feudalistic activities haveno compunction to commit such crimes which are offences under theIndian Penal Code. It is because their violent acts have not been takencognizance of by the police and their functioning is not seriouslyquestioned by the administration. The constitutional provisions are shown

scant regard and human dignity is treated at the lowest melting point byGthis collective. Article 21 which provides for protection of life and libertyand guards basic human rights and equality of status has beenunceremoniously shown the exit by the actions of these Panchayats orthe groups who, without the slightest pangs of conscience, subscribe tohonour killing. In this backdrop, prayers have been made as has beenHstated hereinbefore.

8. counter affidavit has been filed on the behalf of the Union ofIndia, Ministry of Home Affairs and Ministry of Women and ChildDevelopment, respondent Nos. 1, 2 and 3 respectively. It has beencontended that honour killings are treated as murder as defined underSection 300 of the IPC and punishable under Section 302 of the IPC. Asthe police and public order are State subjects under the Constitution, it isprimarily the responsibility of the States to deal with honour killings. It isput forth that the Central Government is engaging various States andUnion Territories for considering proposal to either amend the IPC orenact separate legislation to address the menace of honour killing andrelated issues.

9. Pursuant to the order of this Court dated 9[th] September, 2013,the Union of India has filed another affidavit stating, inter alia, that inorder to tackle the issue of ‘honour killings’, Bill titled ‘The Prohibitionof Interference with the Freedom of Matrimonial Alliances Bill’ has beenrecommended by the Law Commission of India vide the 242[nd] LawCommission Report. The Union of India has further contended that sincethe matter of the 242[nd] 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 isa sine qua non for taking policy decision in this regard.10. In further affidavit dated 16[th] January, 2014, the Union ofIndia has contended that as on the said date, 15 States/UTs have senttheir positive responses, while responses from other remaining States/UTs were awaited. The Union of India filed an additional affidavit on25[th ]September, 2014 wherein vide paragraph 4 it is averred that sixmore States/UTs have sent positive responses in favour of ‘TheProhibition of Interference with the Freedom of Matrimonial AlliancesBill’ and that reminders have been sent to the remaining States/UTswhose responses are awaited. Further, it has been submitted that afterreceiving comments from the remaining States/UTs, necessary actionshall be taken by the Union of India in the matter. It is the stand of theUnion of India that draft Bill in consultation with all stakeholders willbe prepared for the avowed purpose as soon as the comments arereceived. It has also been set forth that several advisories have beenissued to the State Governments from time to time regarding the stepsneeded to prevent crimes against women including special steps to betaken to curb the menace of honour killing.

A11. An affidavit has been filed by the State of Punjab stating,inter alia, that it is not taking adversarial position and it does not intendto be silent spectator to any form of honour killing and for the saidreason, it has issued Memo No.5/151/10-5H4/2732-80 in theDepartment of Home Affairs and Justice laying down and bringing intoforce the revised guidelines/policies in order to remove any doubt and toBclear any uncertainty and/or threat prevalent amongst the public at large.The policy, as put forth, envisages dealing with protection to newlywedded couples who apprehend danger to life and liberty for at least sixweeks after marriage. It also asserted that the State is determined totake pre-emptive, protective and corrective measures and wheneverCany individual case comes to notice or is highlighted, appropriate actionhas been taken and shall also be taken by the Government. That apart,the reply affidavit reflects that all the culprits of the crime have beenbooked under the law and proceeded against.

12. The State of Haryana has filed an affidavit denying theDallegations made against the State and further stating that adequateprotection has been given to couples by virtue of the order of the HighCourt and District Courts and sometimes by the police directly comingto know of the situation. It is contended that FIRs have been lodgedagainst persons accused of the crime and the cases are progressing asper law. The stand of the State of Haryana is that an action plan hasEalready been prepared and the Crime Against Women Cells arefunctioning at every district headquarter in the State and necessarypublicity has already been given and the citizens are aware of thosecells.

13. The State of Jharkhand has filed its response stating, interFalia, the measures taken against persons involved in such crimes. Apartfrom asseverating that honour killing is not common in the State ofJharkhand, it is stated that it shall take appropriate steps to combat suchcrimes.

14. counter affidavit has been filed on behalf of NCT of Delhi.GThe affidavit states that Delhi Police does not maintain separate recordfor cases under the category of “Honour Killing”. However, it has beenmentioned that by the time the affidavit was filed, 11 cases wereregistered. It is urged that such cases are handled by the District Policeand there is special cell functioning within Delhi Police meant for seriousHcrimes relating to internal security and such cases can be referred to the

said cell and there is no necessity for constitution of special cell ineach police district. Emphasis has been laid that Delhi Police hassensitized the field officers in this regard so that the issues can be handledwith necessary sensitivity and sensibility. The Department of Womenand Child Development has also made arrangements for rehabilitationof female victims facing threat of honour killing and efforts have beenmade to sensitize the society against commission of such crimes. Acircular 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 theexercise of unwarranted activities under the garb of khap panchayats.The State of Rajasthan contends that it has issued circulars to the policepersonnel to keep check on the activities of the panchayats and furtherexpressed its willingness to abide by any guidelines that may be issuedby this Court to ameliorate and curb the evil of honour killing that subsistsin our society.

16. The State of Uttar Pradesh has filed two counter affidavitswherein it is stated that it is the primary duty of the States to protect theFundamental Rights enshrined and guaranteed under the Constitution ofIndia. It is further contended that although there is no specific legislationto regulate and prevent “honour killing”, yet effective measures underthe present law are being taken by the State to control the same. Thesaid measures are in the nature of directions and guidelines to the lawenforcement agencies. Further, the State of Uttar Pradesh has broughton record that there have been no reported cases of “honour killing” or“social ostracizing” in the State for the period from 01.01.2010 till31.12.2012. Yet, time and again, directions are being given to the policestations to keep close watch on the activities and functioning of theKhaps. The State of Uttar Pradesh has acceded to comply with anydirections which this Court may issue.

17. The State of Bihar has, in its affidavit, acknowledged thathonour killing is heinous crime which violates the fundamental rights ofthe citizens. Although the State of Bihar has taken the stance that casesof honour killing in the State are almost nil, yet list of five cases whichmay assume the character of honour killing have been mentioned in theaffidavit. The State has further averred that several reformative stepshave been taken for the upliftment and empowerment of women andconstant efforts are being made to sensitize people. It has been asserted

Athat the State of Bihar has initiated scheme to provide National SavingCertificate amounting to Rs. 25,000/- as incentive to any womanperforming inter-caste marriage in order to ensure their economic stability.

18. It has been contended by the State of Madhya Pradesh thatthe State Government and the police are alive to the problem of honourBkillings and they have created “Crime Against Women Cell” at theState level headed by the Inspector General of Police to ensure safetyof couples and active prosecution in each case of honour killing. TheM.P. Government, vide order no. F/21-261/10 dated 27.01.2011, hasissued specific instructions to the District Magistrates/Superintendent ofPolice for taking strict action in cases of honour killing.C19. It is the contention of the State of Himachal Pradesh thatthere are no Panchayats of the nature of Khap Panchayats operating inthe State of Himachal Pradesh and that there have been no cases ofhonour killing reported in the past 10 years. The State avers that severalmeasures are being taken to combat the social evils prevailing in theDsociety.

20. An application for intervention, on behalf of several KhapPanchayats, filed by “Manushi Sanghatan” has been allowed. It hasbeen averred by Manushi Sanghatan that, on being requested by themedia to voice their concern on the activities of Khap panchayats, theESanghatan has conducted survey into the functioning of the KhapPanchayats, but they were unable to find any evidence to hold the KhapPanchayats responsible for honour killings occurring in the country. Inthis factual background, the Sanghatan contends that the proposed bill,“The Prohibition of Interference with the Freedom of MatrimonialFAlliances Bill’, is futile exercise in view of the ample existing penalprovisions and it is stated that the powers that the said bill aims to stipulatemay have the result of giving power to vested interests to harass wellmeant gatherings of local communities. The intervenor has also challengedthe findings of the report of the petitioner on various grounds.

21. The petitioner has filed rejoinder affidavit wherein it hasbeen highlighted that this Court has taken cognizance of the brutal killingsthat take place in the name of honour and it is urged that although someStates have formed an Action Plan in pursuance of the directions issuedby this Court, yet they have failed to effectively implement the same inletter and spirit. In view of this fact, effective guidelines to the police

and law enforcement agencies to curb the menace of honour killingneed to be formulated and implemented.

22. From the stand taken by the concerned States, it is perceivablethat the authorities, while denying the incidences being visible, do notdispute the sporadic happenstance of such occurrences and speak in asingular voice by decrying such acts. It is also clear that some suchPanchayats take the positive stance demonstrating their collective effortas to how they cultivate in people the idea of inter-caste marriage andcommunity acceptance. The duty of this Court, in view of the authoritiesin the field that deal with specific circumstances, is to view the scenariofrom the prism of pragmatic ground reality as has been projected and toact within the constitutional parameters to protect the liberty and life ofcitizens. Commitment to the constitutional values requires this Court tobe sensitive and act in such matter and we shall do so within thepermissible boundaries and framework because as the guardian of therights of the citizens, this Court cannot choose the path of silence.

23. Before we engage ourselves in the process what we havestated hereinabove and refer to the earlier decisions of this Court, wethink it apt to refer to the 242[nd] Report submitted by the Law Commissionof India, namely, “Prevention of Interference with the Freedom ofMatrimonial Alliances (in the name of Honour and Tradition): SuggestedLegal 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 convenientexpressions to describe the incidents of violence and harassmentcaused to the young couple intending to marry or having marriedagainst the wishes of the community or family members. Theyare used more as catch phrases and not as apt and accurateexpressions.

1.3 The so-called ‘honour killings’ or ‘honour crimes’ are notpeculiar to our country. It is an evil which haunts many othersocieties also. The belief that the victim has brought dishonourupon the family or the community is the root cause of such violentcrimes. Such violent crimes are directed especially against women.Men also become targets of attack by members of family of awoman with whom they are perceived to have an ‘inappropriaterelationship’. Changing cultural and economic status of women

and the women going against their male dominated culture hasbeen one of the causes of honour crimes. In some western cultures,honour killings often arise from women seeking greaterindependence and choosing their own way of life. In some cultures,honour killings are considered less serious than other murdersbecause they arise from long standing cultural traditions and arethus deemed appropriate or justifiable. An adulterous behaviourof woman or pre-marital relationship or assertion of right to marryaccording to their choice, are widely known causes for honourkillings in most of the countries. The report of the SpecialRapporteur to U.N.[1] of the year 2002 concerning cultural practicesin the family that are violent towards women indicated that honourkillings had been reported in Jordon, Lebanon, Morocco, Pakistan,United Arab Republic, Turkey, Yemen and other Persian Gulfcountries and that they had also taken place in western countriessuch as France, Germany and U.K. mostly within migrantcommunities. The report “Working towards the elimination ofcrimes against women committed in the name of honour”[2]submitted to the United Nations High Commissioner for HumanRights is quite revealing. Apart from the other countries namedabove, according to the UN Commission on Human Rights, thereare 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 HumanRights Watch, the practice of honour killing “goes across culturesand across religions”. There are reports that in some communities,many are prepared to condone the killing of someone who havedishonoured their family. The 2009 European ParliamentaryAssembly noted the rising incidents of honour crimes with concern.In 2010, Britain saw 47% rise of honour-related crimes. Datafrom police agencies in the UK report 2283 cases in 2010 andmost of the attacks were conducted in cities that had high immigrantpopulations. The national legal Courts in some countries viz., Haiti,Jordon, Syria, Morocco and two Latin American countries do not

1 http://www.unhchr.ch/huridocda/huridoca.nsf/06a5300f90fa0238025668700518ca4/42e7191fae543562c1256 ba7004e963c/$FILE/G0210428.pdf

2http://www.unhchr.ch/Huridocda/Huridoca.nsf/6a5300f90fa0238025668700518ca4/985168f508ee799fc1256 c52002ae5a9/$FILE/N02467.90.pdf

penalize men killing female relatives found committing adultery orthe husbands killing their wives in flagrante delicto. survey byElen R. Sheelay[3] revealed that 20% of Jordanites interviewedsimply believe that Islam condones or even supports killing in thename of family honour which is myth.

1.4 As far as India is concerned, “honour killings” are mostlyreported from the States of Haryana, Punjab, Rajasthan and U.P.Bhagalpur in Bihar is also one of the known places for “honourkillings”. Even some incidents are reported from Delhi and TamilNadu. Marriages with members of other castes or the coupleleaving the parental home to live together and marry provoke theharmful acts against the couple and immediate family members.1.5 The Commission tried to ascertain the number of such incidents,the accused involved, the specific reasons, etc., so as to have anidea of the general crime scenario in such cases. The Governmentauthorities of the States where incidents often occur have beenaddressed to furnish the information. The Director (SR) in theMinistry of Home Affairs, by her letter dated 26 May 2010, alsorequested the State Governments concerned to furnish thenecessary information to the Commission. However, there hasbeen no response despite reminder. But, from the newspaperreports, and reports from various other sources, it is clear that thehonour crimes occur in those States as result of people marryingwithout their family’s acceptance and for marrying outside theircaste or religion. Marriages between the couple belonging to sameGotra (family name) have also often led to violent reaction fromthe family members or the community members. The Castecouncils or Panchayats popularly known as ‘Khap Panchayats’try to adopt the chosen course of ‘moral vigilantism’ and enforcetheir diktats by assuming to themselves the role of social or”community guardians.

[underlining is ours]

24. Adverting to the dimensions of the problem and the need for aseparate law, the Report states:-

“2.3 The pernicious practice of Khap Panchayats and the liketaking law into their own hands and pronouncing on the invalidity

3Quoted in Anver Emon’s Article on Honour Killings

and impropriety of Sagotra and inter-caste marriages and handingover punishment to the couple and pressurizing the family membersto execute their verdict by any means amounts to flagrant violationof rule of law and invasion of personal liberty of the personsaffected.

2.4 Sagotra marriages are not prohibited by law, whatever maybe the view in olden times. The Hindu Marriage DisabilitiesRemoval Act, 1946 was enacted with view to dispel any doubtsin this regard. The Act expressly declared the validity of marriagesbetween the Hindus belonging to the same ‘gotra’ or ‘pravara’ ordifferent sub-divisions of same caste. The Hindu Marriage Actdoes not prohibit sagotra or inter-caste marriages.”

And further:-

“2.5 The views of village elders or family elders cannot be forcedon the willing couple and no one has right to use force or imposefar-reaching sanctions in the name of vindicating communityhonour or family honour. There are reports that drastic actionincluding wrongful confinement, persistent harassment, mentaltorture, infliction of or threats of severe bodily harm is resorted toeither by close relations or some third parties against the so-callederring couple either on the exhortations of some or all thePanchayatdars or with their connivance. Several instances ofmurder of one or the other couple have been in the news. Socialboycotts and other illegal sanctions affecting the young couple,the families and even section of local inhabitants are quite oftenresorted to. All this is done in the name of tradition and honour.The cumulative effect of all such acts have public order dimensionsalso.”25. The Law Commission had prepared draft Bill and whileadverting to the underlying idea of the provisions of the draft Bill, it hasstated:-

“2.8 The idea underlying the provisions in the draft Bill is thatthere must be threshold bar against congregation or assemblyfor the purpose of objecting to and condemning the conduct ofyoung persons of marriageable age marrying according to theirchoice, the ground of objection being that they belong to the samegotra or to different castes or communities. The Panchayatdars

or caste elders have no right to interfere with the life and libertyof such young couples whose marriages are permitted by law andthey cannot create situation whereby such couples are placedin hostile environment in the village/locality concerned andexposed to the risk of safety. Such highhanded acts have atendency to create social tensions and disharmony too. No frameof mind or belief based on social hierarchy can claim immunityfrom social control and regulation, in so far as such beliefs manifestthemselves as agents of enforcement of right and wrong. Thevery assembly for an unlawful purpose viz. disapproving themarriage which is otherwise within the bounds of law and takingconsequential action should be treated as an offence as it has thepotential to endanger the lives and liberties of individuals concerned.The object of such an assembly is grounded on disregard for thelife and liberty of others and such conduct shall be adequatelytackled by penal law. This is without prejudice to the prosecutionto be launched under the general penal law for the commission ofoffences including abetment and conspiracy.

2.9 Given the social milieu and powerful background of castecombines which bring to bear intense pressure on parents andrelatives to go to any extent to punish the ‘sinning’ couples so asto restore the community honour, it has become necessary to dealwith this fundamental problem. Any attempt to effectively tacklethis socio-cultural phenomenon, rooted in superstition andauthoritarianism, must therefore address itself to various factorsand dimensions, viz, the nature and magnitude of the problem, theadequacy of existing law, and the wisdom in using penal and othermeasures of sanction to curb the power and conduct of castecombines. The law as it stands does not act either as deterrenceor as sobering influence on the caste combinations andassemblies who regard themselves as being outside the pale oflaw.The socio-cultural outlook of the members of caste councilsor Panchayats is such that they have minimal or scant regard forindividual liberty and autonomy.”

[Emphasis added]

26. Highlighting the aspect of autonomy of choices and liberty,the underlying object of the proposed Bill as has been stated by the LawCommission reads as under :-

“4.1 The autonomy of every person in matters concerning oneself– free and willing creator of one’s own choices and decisions, isnow central to all thinking on community order and organization.Needless to emphasize that such autonomy with its manifolddimensions is constitutionally protected value and is central toan open society and civilized order. Duly secured individualautonomy, exercised on informed understanding of the valuesintegral to one’s well being is deeply connected to free socialorder. Coercion against individual autonomy will then become leastnecessary.

4.2 In moments and periods of social transition, the tensionsbetween individual freedom and past social practices become focalpoints of the community’s ability to contemplate and provide forleast hurting or painful solutions. The wisdom or wrongness ofcertain community perspectives and practices, their intrinsic impacton liberty, autonomy and self-worth, as well as the parents’ concernover impulsive and unreflective choices – all these factors come

to the fore-front of consideration.

4.3 The problem, however, is the menacing phenomena ofrepressive social practices in the name of honor triggering violentreaction from the influential members of community who are blindEto individual autonomy. …”

27. Thus, the Report shows the devastating effect of the crimeand the destructive impact on the right of choice of an individual and thecontrol of the collective over the said freedom. The Commission hasemphasized on the intense pressure of the powerful community and howthey punish the “sinning couples” according to their socio-culturalperception and community honour and the action taken by them thatresults in extinction of the rights of individuals which are guaranteedunder the Constitution. It has eloquently canvassed about the autonomyof every person in matters concerning oneself and the expression of theright which is integral to the said individual.

28. Be it noted, the draft Bill refers to “Khap Panchayat” to meanany person or group of persons who have gathered, assembled orcongregated at any time with the view or intention of condemning anymarriage, including proposed marriage, not prohibited by law, on thebasis that such marriage has dishonoured the caste or community tradition

or brought disrepute to all or any of the persons forming part of theassembly or the family or the people of the locality concerned.

29. Presently, we shall advert to certain pronouncements of thisCourt where the Court, while adjudicating the lis of the said nature, hasexpressed its concern with regard to such social evil which is themanifestation of perverse thought, egotism at its worst and inhumanbrutality.

30. In Lata Singh v. State of U.P. and another[4], two-JudgeBench, while dealing with writ petition under Article 32 of theConstitution which was filed for issuing writ of certiorari and/ormandamus for quashing of trial, allowed the writ petition preferred bythe petitioner whose life along with her husband’s life was in constantdanger as her brothers were threatening them. The Court observed thatthere is no bar for inter-caste marriage under the Hindu Marriage Act orany other law and, hence, no offence was committed by the petitioner,her husband or husband’s relatives. The Court also expressed dismaythat instead of taking action against the petitioner’s brothers for unlawfuland high handed acts, the police proceeded against the petitioner’shusband and her sisters-in-law. Being aware of the harassment facedand violence against women who marry outside their caste, the Courtobserved:-

“17. … This is free and democratic country, and once personbecomes major he or she can marry whosoever he/she likes. Ifthe parents of the boy or girl do not approve of such inter-caste orinter-religious marriage the maximum they can do is that they cancut-off social relations with the son or the daughter, but they cannotgive threats or commit or instigate acts of violence and cannotharass the person who undergoes such inter-caste or inter-religiousmarriage. …”

31. After so stating, the two-Judge Bench directed theadministration/police authorities throughout the country to ensure that ifany boy or girl who is major undergoes inter-caste or inter-religiousmarriage with woman or man who is major, the couple is neitherharassed by anyone nor subjected to threats or acts of violence, and thatanyone who gives such threats or harasses or commits acts of violenceeither himself or at his instigation is taken to task by instituting criminal

4(2006) 5 SCC 475

Aproceedings by the police against such persons and further stern actionis taken against such persons as provided by law. Deliberating further,the Court painfully stated:-

“18. We sometimes hear of “honour” killings of such persons whoundergo inter-caste or inter-religious marriage of their own freeBwill. There is nothing honourable in such killings, and in fact theyare nothing but barbaric and shameful acts of murder committedby brutal, feudal-minded persons who deserve harsh punishment.Only in this way can we stamp out such acts of barbarism.”

32. In Arumugam Servai v. State of Tamil Nadu[5], the Courtreferred to the observations made in Lata Singh’s case and opined:-C

“12. We have in recent years heard of “Khap Panchayats” (knownas “Katta Panchayats” in Tamil Nadu) which often decree orencourage honour killings or other atrocities in an institutionalisedway on boys and girls of different castes and religion, who wishto get married or have been married, or interfere with the personalDlives of people. We are of the opinion that this is wholly illegal andhas to be ruthlessly stamped out. As already stated in Lata Singhcase, there is nothing honourable in honour killing or other atrocitiesand, in fact, it is nothing but barbaric and shameful murder. Otheratrocities in respect of personal lives of people committed by brutal,Efeudal-minded persons deserve harsh punishment. Only in thisway can we stamp out such acts of barbarism and feudal mentality.Moreover, these acts take the law into their own hands, and amountto kangaroo courts, which are wholly illegal.”

33. After so stating, the Court directed the administrative andpolice officials to take strong measures to prevent such atrocious acts.FIf such incidents happen, apart from instituting criminal proceedingsagainst those responsible for the atrocities, the State Government wasdirected to immediately suspend the District Magistrate/Collector andSSP/SPs of the district as well as other officials concerned and charge-sheet them and proceed against them departmentally if they do not (1)Gprevent the incident if it has not already occurred but they have knowledgeof it in advance, or (2) if it has occurred, they do not promptly apprehendthe culprits and others involved and institute criminal proceedings againstthem. Be it noted, in the said case, the Court commented on the appellantsthat they had behaved like uncivilized savages and deserved no mercy.

H5(2011) 6 SCC 405

34. The aforesaid view of the Court was further emphasized inBhagwan Dass v. State (NCT of Delhi)[6] wherein it has been statedthat many people feel that they are dishonoured by the behaviour of theyoung man/woman who is related to them or belongs to their caste simplybecause he/she is marrying against their wish or having an affair withsomeone, and hence they take the law into their own hands and kill orphysically assault such person or commit some other atrocities which iswholly illegal. Regard being had to the expression of unhappiness withthe behaviour of daughter or other person, the Court observed that themaximum person can do is to cut off social relations with her/him, buthe cannot take the law into his own hands by committing violence orgiving threats of violence.

35. In Re: India Woman says Gang-raped on Orders of VillageCourt published in Business & Financial News dated 23-1-2014[7],theCourt, after referring to Lata Singh (supra), Arumugam Servai (supra)and adverting to the 242[nd] Report of the Law Commission, opined:-

“16. Ultimately, the question which ought to consider and assessby this Court is whether the State police machinery could havepossibly prevented the said occurrence. The response is certainlya “yes”. The State is duty-bound to protect the fundamental rightsof its citizens; and an inherent aspect of Article 21 of theConstitution would be the freedom of choice in marriage. Suchoffences are resultant of the State’s incapacity or inability to protectthe fundamental rights of its citizens.”

And again:-

“18. As long-term measure to curb such crimes, larger societalchange is required via education and awareness. The Governmentwill have to formulate and implement policies in order to uplift thesocio-economic condition of women, sensitisation of the policeand other parties concerned towards the need for gender equalityand it must be done with focus in areas where statistically there ishigher percentage of crimes against women.”

36. In Vikas Yadav v. State of Uttar Pradesh and others[8], thetwo-Judge Bench, while dwelling upon the quantum of sentence in the

6 (2011) 6 SCC 396

7 (2014) 4 SCC 786

8 (2016) 9 SCC 541

Acase where the young man chosen by the sister was murdered by thebrother who had received education in good educational institutions,observed that the accused persons had not cultivated the ability to abandonthe deprecable feelings and attitude for centuries. Perhaps, they hadharboured the fancy that it is an idea of which time had arrived fromtime immemorial and ought to stay till eternity. Proceeding further, theBCourt held:-

“75. One may feel “My honour is my life” but that does not meansustaining one’s honour at the cost of another. Freedom,independence, constitutional identity, individual choice and thoughtof woman, be wife or sister or daughter or mother, cannot beCallowed to be curtailed definitely not by application of physicalforce or threat or mental cruelty in the name of his self-assumedhonour. That apart, neither the family members nor the membersof the collective has any right to assault the boy chosen by thegirl. Her individual choice is her self-respect and creating dent inDit is destroying her honour. And to impose so-called brotherly orfatherly honour or class honour by eliminating her choice is acrime of extreme brutality, more so, when it is done under guise.It is vice, condemnable and deplorable perception of “honour”,comparable to medieval obsessive assertions.”

E37. In Asha Ranjan v. State of Bihar and others[9], the Court, ina different context, noted:-

“61. …choice of woman in choosing her partner in life is alegitimate constitutional right. It is founded on individual choicethat is recognised in the Constitution under Article 19, and such aFright is not expected to succumb to the concept of “class honour”or “group thinking”. It is because the sense of class honour hasno legitimacy even if it is practised by the collective under somekind of notion.”

38. In State of U.P. v. Krishna Master and others[10],the Court,Gwhile setting aside the judgment of acquittal of the High Court, convictedthe accused persons with rigorous imprisonment for life and fine ofRs. 25,000/-. It observed that killing of six persons and wiping out ofalmost the whole family on the flimsy ground of saving of honour of thefamily would fall within the ‘rarest of rare’ case evolved by this Court9 (2017) 4 SCC 397H10 AIR 2010 SC 3071

and, therefore, the trial court was perfectly justified in imposing capitalpunishment on the respondents. However, taking into consideration thefact that the incident had taken place before twenty years, it did not passthe death sentence but imposed the sentence of rigorous imprisonmentfor life. The said decision reflects the gravity of the crime that occursdue to “honour killing”.

39. The aforesaid authorities show the distress with which theCourt has perceived the honour crimes and also reflects the uneasinessand anxiety to curb such social symptoms. The observations were madeand the directions were issued in cases where crime based on honourwas required to be dealt with. But, the present case, in contradistinction,centres around honour killing and its brutality and the substantivemeasures to be taken to destroy the said menace. The violation of theconstitutional rights is the fulcrum of the issue. The protection of rightsis pivotal. Though there has been constant social advancement, yet theproblem of honour killing persists in the same way as history had seen in1750 BC under the Code of Hammurabi. The people involved in suchcrimes become totally oblivious of the fact that they cannot tread anillegal path, break the law and offer justification with some kind of moralphilosophy of their own. They forget that the law of the land requiresthat the same should be shown implicit obedience and profound obeisance.The human rights of daughter, brother, sister or son are not mortgagedto the so-called or so-understood honour of the family or clan or thecollective. The act of honour killing puts the rule of law in catastrophiccrisis.

40. It is necessary to mention here that honour killing is not thesingular type of offence associated with the action taken and verdictpronounced by the Khap Panchayats. It is grave one but not the loneone. It is part of honour crime. It has to be clearly understood thathonour crime is the genus and honour killing is the species, although adangerous facet of it. However, it can be stated without any fear ofcontradiction that any kind of torture or torment or ill-treatment in thename of honour that tantamounts to atrophy of choice of an individualrelating to love and marriage by any assembly, whatsoever nomenclatureit assumes, is illegal and cannot be allowed moment of existence.

41. What we have stated hereinabove, to explicate, is that theconsent of the family or the community or the clan is not necessary once

Athe two adult individuals agree to enter into wedlock. Their consenthas to be piously given primacy. If there is offence committed by onebecause of some penal law, that has to be decided as per law which iscalled determination of criminality. It does not recognize any space forinformal institutions for delivery of justice. It is so since polity governedby ‘Rule of Law’ only accepts determination of rights and violationBthereof by the formal institutions set up for dealing with such situations.It has to be constantly borne in mind that rule of law as concept ismeant to have order in society. It respects human rights. Therefore,the Khap Panchayat or any Panchayat of any nomenclature cannot createa dent in exercise of the said right.C

42. In this regard, we may fruitfully reproduce passage fromKartar Singh v. State of Punjab[11] wherein C.G. Weeramantry in ‘TheLaw in Crisis – Bridges of Understanding’ emphasizing the importanceof rule of law in achieving social interest has stated:-

“The protections the citizens enjoy under the Rule of Law are theDquintessence of twenty centuries of human struggle. It is notcommonly realised how easily these may be lost. There is noknown method of retaining them but eternal vigilance. There is noknown authority to which this duty can be delegated but thecommunity itself. There is no known means of stimulating thisEvigilance but education of the community towards an enlightenedinterest in its legal system, its achievements and its problems.”

Honour killing guillotines individual liberty, freedom of choice andone’s own perception of choice. It has to be sublimely borne in mind thatwhen two adults consensually choose each other as life partners, it is aFmanifestation of their choice which is recognized under Articles 19 and21 of the Constitution. Such right has the sanction of the constitutionallaw and once that is recognized, the said right needs to be protected andit cannot succumb to the conception of class honour or group thinkingwhich is conceived of on some notion that remotely does not have anylegitimacy.G

43. The concept of liberty has to be weighed and tested on thetouchstone of constitutional sensitivity, protection and the values it standsfor. It is the obligation of the Constitutional Courts as the sentinel onqui vive to zealously guard the right to liberty of an individual as the

11 (1994) 3 SCC 569H

dignified existence of an individual has an inseparable association withliberty. Without sustenance of liberty, subject to constitutionally validprovisions of law, the life of person is comparable to the living deadhaving to endure cruelty and torture without protest and tolerateimposition of thoughts and ideas without voice to dissent or record adisagreement. The fundamental feature of dignified existence is toassert for dignity that has the spark of divinity and the realization ofchoice within the parameters of law without any kind of subjugation.The purpose of laying stress on the concepts of individual dignity andchoice within the framework of liberty is of paramount importance. Wemay clearly and emphatically state that life and liberty sans dignity andchoice is phenomenon that allows hollowness to enter into theconstitutional recognition of identity of person.

44. The choice of an individual is an inextricable part of dignity,for dignity cannot be thought of where there is erosion of choice. True itis, the same is bound by the principle of constitutional limitation but in theabsence of such limitation, none, we mean, no one shall be permitted tointerfere in the fructification of the said choice. If the right to expressone’s own choice is obstructed, it would be extremely difficult to think ofdignity in its sanctified completeness. When two adults marry out oftheir volition, they choose their path; they consummate theirrelationship; they feel that it is their goal and they have the right to do so.And it can unequivocally be stated that they have the right and anyinfringement of the said right is constitutional violation. The majority inthe name of class or elevated honour of clan cannot call for theirpresence or force their appearance as if they are the monarchs of someindescribable era who have the power, authority and final say to imposeany sentence and determine the execution of the same in the way theydesire possibly harbouring the notion that they are law untothemselves or they are the ancestors of Caesar or, for that matter, Louisthe XIV. The Constitution and the laws of this country do notcountenance such an act and, in fact, the whole activity is illegal andpunishable as offence under the criminal law.

45. It has been argued on behalf of the “Khap Panchayats” that itis misnomer to call them by such name. The nomenclature isabsolutely irrelevant. What is really significant is that the assembly ofcertain core groups meet, summon and forcefully ensure the presence

ABC

Aof the couple and the family members and then adjudicate and imposepunishment. Their further submission is that these panchayats arecommitted to the spreading of awareness of permissibility ofinter-community and inter-caste marriages and they also tell the peopleat large how “Sapinda” and “Sagotra” marriages have no sanction oflaw. The propositions have been structured with immense craft andBadvanced with enormous zeal and enthusiasm but the fallacy behind thesaid proponements is easily decipherable. The argument is founded onthe premise that there are certain statutory provisions and certainjudgments of this Court which prescribe the prohibitory degrees formarriages and provide certain guidelines for maintaining the sex ratioCand not giving any allowance for female foeticide that is resultanteffect of sex determination which is prohibited under thePre-Conception and Pre-Natal Diagnostic Techniques (Prohibition onSex Selection) Act, 1994 (for short ‘PCPNDT Act’) (See : VoluntaryHealth Association of Punjab v. Union of India and others[12 ]and

Voluntary Health Association of Punjab v. Union of India and oth-Ders[13]).

46. The first argument deserves to be rejected without muchdiscussion. Suffice it to say, the same relates to the recognition ofmatrimonial status. If it is prohibited in law, law shall take note of it whenthe courts are approached. Similarly, PCPNDT Act is complete code.EThat apart, the concern of this Court in spreading awareness to sustainsex ratio is not to go for sex determination and resultantly femalefoeticide. It has nothing to do with the institution of marriage.

47. The ‘Khap Panchayats’ or such assembly should not take thelaw into their hands and further cannot assume the character of the lawFimplementing agency, for that authority has not been conferred uponthem under any law. Law has to be allowed to sustain by the lawenforcement agencies. For example, when crime under IPC iscommitted, an assembly of people cannot impose the punishment. Theyhave no authority. They are entitled to lodge an FIR or inform the police.They may also facilitate so that the accused is dealt with in accordanceGwith law. But, by putting forth stand that they are spreadingawareness, they really can neither affect others’ fundamental rights norcover up their own illegal acts. It is simply not permissible. In fact, it hasto be condemned as an act abhorrent to law and, therefore, it has to12 (2013) 4 SCC 113 (2016) 10 SCC 265H

stop. Their activities are to be stopped in entirety. There is no otheralternative. What is illegal cannot commend recognition or acceptance.

48. Having noted the viciousness of honour crimes andconsidering the catastrophic effect of such kind of crimes on the society,it is desirable to issue directives to be followed by the law enforcementagencies and also to the various administrative authorities. We aredisposed to think so as it is the obligation of the State to have anatmosphere where the citizens are in position to enjoy theirfundamental rights. In this context, passage from S. Rangarajan v. P.Jagjivan Ram and others[14] is worth reproducing:-“51. We are amused yet troubled by the stand taken by the StateGovernment with regard to the film which has received theNational Award. We want to put the anguished question, whatgood is the protection of freedom of expression if the State doesnot take care to protect it? If the film, is unobjectionable and cannotconstitutionally be restricted under Article 19(2), freedom ofexpression cannot be suppressed on account of threat ofdemonstration and processions or threats of violence. That wouldtantamount to negation of the rule of law and surrender toblackmail and intimidation. It is the duty of the State to protect thefreedom of expression since it is liberty guaranteed against theState. The State cannot plead its inability to handle the hostileaudience problem. It is its obligatory duty to prevent it and protectthe freedom of expression.”

We are absolutely conscious that the aforesaid passage has beenstated in respect of different fundamental right but the said principleapplies with more vigour when the life and liberty of individuals isinvolved. We say so reminding the States of their constitutionalobligation to comfort and nurture the sustenance of fundamental rightsof the citizens and not to allow any hostile group to create any kind oftrench in them.

49. We may also hold here that an assembly or Panchayatcommitted to engage in any constructive work that does not offend thefundamental rights of an individual will not stand on the same footing ofKhap Phanchayat. Before we proceed to issue directions to meet thechallenges of honour crime which includes honour killing, it is necessary

CDE

Ato note that as many as 288 cases of honour killing were reportedbetween 2014 and 2016. According to the data of National CrimeRecords Bureau (NCRB), 28 honour killing cases were reported in 2014,192 in 2015 and 68 in the year 2016.

50. We may note with profit that honour killings are condemnedBas serious human rights violation and are addressed by certaininternational instruments. The Council of Europe Convention onPreventing and Combating Violence Against Women and DomesticViolence addresses this issue. Article 42 reads thus:-

“Article 42 – Unacceptable justifications for crimes, includingcrimes committed in the name of so-called “honour”C1. Parties shall take the necessary legislative or other measuresto ensure that, in criminal proceedings initiated following thecommission of any of the acts of violence covered by the scopeof this Convention, culture, custom, religion, tradition or so-called“honour” shall not be regarded as justification for such acts. ThisDcovers, in particular, claims that the victim has transgressedcultural, religious, social or traditional norms or customs ofappropriate behaviour.

2. Parties shall take the necessary legislative or other measuresto ensure that incitement by any person of child to commit anyEof the acts referred to in paragraph 1 shall not diminish thecriminal liability of that person for the acts committed.”

51. Once the fundamental right is inherent in person, theintolerant groups who subscribe to the view of superiority class complexor higher clan cannot scuttle the right of person by leaning on any kindof philosophy, moral or social, or self-proclaimed elevation. Therefore,Ffor the sustenance of the legitimate rights of young couples or anyoneassociated with them and keeping in view the role of this Court as theguardian and protector of the constitutional rights of the citizens andfurther to usher in an atmosphere where the fear to get into wedlockbecause of the threat of the collective is dispelled, it is necessary toGissue directives and we do so on the foundation of the principle stated inLakshmi Kant Pandey v. Union of India[15], Vishaka and others v.State of Rajasthan and others[16] and Prakash Singh and others v.Union of India and others[17].

15 (1984) 2 SCC 24416 (1997) 6 SCC 241H17(2006) 8 SCC 1

52. It is worthy to note that certain legislations have come intoexistence to do away with social menaces like “Sati” and “Dowry”. It isbecause such legislations are in accord with our Constitution. Similarly,protection of human rights is the élan vital of our Constitution thatepitomizes humanness and the said conceptual epitome of humanitycompletely ostracizes any idea or prohibition or edict that creates ahollowness in the inalienable rights of the citizens who enjoy their rightson the foundation of freedom and on the fulcrum of justice that is fair,equitable and proportionate. There cannot be any assault on human dignityas it has the potentiality to choke the majesty of law. Therefore, wewould recommend to the legislature to bring law appositely covering thefield of honour killing. In this regard, we may usefully refer to the au-thority wherein this Court has made such recommendation. InSamrendra Beura v. Union of India and others[18], this Court held:-

“16. Though such amendments have been made by Parliamentunder the 1950 Act and the 1957 Act, yet no such amendment hasbeen incorporated in the Air Force Act, 1950. The aforesaidprovisions, as we perceive, have been incorporated in both thestatutes to avoid hardship to persons convicted by the CourtMartial. Similar hardship is suffered by the persons who aresentenced to imprisonment under various provisions of the Act.Keeping in view the aforesaid amendment in the other twoenactments and regard being had to the purpose of the amendmentand the totality of the circumstances, we think it apt to recommendthe Union of India to seriously consider to bring an amendment inthe Act so that the hardships faced by the persons convicted bythe Court Martial are avoided.”

53. Mr. Raju Ramachandran, learned senior counsel being assistedby Mr. Gaurav Agarwal, has filed certain suggestions for issuingguidelines. The Union of India has also given certain suggestions to betaken into account till the legislation is made. To meet the challenges ofthe agonising effect of honour crime, we think that there has to bepreventive, remedial and punitive measures and, accordingly, we statethe broad contours and the modalities with liberty to the executive andthe police administration of the concerned States to add further measuresto evolve robust mechanism for the stated purposes.

18(2013) 14 SCC 672

AI. Preventive Steps:-

(a) The State Governments should forthwith identify Districts,Sub-Divisions and/or Villages where instances of honour killing orassembly of Khap Panchayats have been reported in the recent past,e.g., in the last five years.

(b) The Secretary, Home Department of the concerned Statesshall issue directives/advisories to the Superintendent of Police of theconcerned Districts for ensuring that the Officer Incharge of the PoliceStations of the identified areas are extra cautious if any instance ofinter-caste or inter- religious marriage within their jurisdiction comes toCtheir notice.

(c) If information about any proposed gathering of KhapPanchayat comes to the knowledge of any police officer or any officerof the District Administration, he shall forthwith inform his immediatesuperior officer and also simultaneously intimate the jurisdictional DeputyDSuperintendent of Police and Superintendent of Police.

(d) On receiving such information, the Deputy Superintendent ofPolice (or such senior police officer as identified by the StateGovernments with respect to the area/district) shall immediatelyinteract with the members of the Khap Panchayat and impress uponEthem that convening of such meeting/gathering is not permissible in lawand to eschew from going ahead with such meeting. Additionally, heshould issue appropriate directions to the Officer Incharge of thejurisdictional Police Station to be vigilant and, if necessary, to deployadequate police force for prevention of assembly of the proposedgathering.

(e) Despite taking such measures, if the meeting is conducted,the Deputy Superintendent of Police shall personally remain present duringthe meeting and impress upon the assembly that no decision can betaken to cause any harm to the couple or the family members of thecouple, failing which each one participating in the meeting besides theGorganisers would be personally liable for criminal prosecution. He shallalso ensure that video recording of the discussion and participation ofthe members of the assembly is done on the basis of which the lawenforcing machinery can resort to suitable action.

(f) If the Deputy Superintendent of Police, after interaction withHthe members of the Khap Panchayat, has reason to believe that the

gathering cannot be prevented and/or is likely to cause harm to the coupleor members of their family, he shall forthwith submit proposal to theDistrict Magistrate/Sub-Divisional Magistrate of the District/Competent Authority of the concerned area for issuing orders to takepreventive steps under the Cr.P.C., including by invoking prohibitoryorders under Section 144 Cr.P.C. and also by causing arrest of theparticipants in the assembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must takeinitiative and work in coordination with the State Governments forsensitising the law enforcement agencies and by involving all the stakeholders to identify the measures for prevention of such violence and toimplement the constitutional goal of social justice and the rule of law.

(h) There should be an institutional machinery with the necessarycoordination of all the stakeholders. The different State Governmentsand the Centre ought to work on sensitization of the law enforcementagencies to mandate social initiatives and awareness to curb such vio-lence.

II. Remedial Measures:-

(a) Despite the preventive measures taken by the State Police, ifit comes to the notice of the local police that the Khap Panchayat hastaken place and it has passed any diktat to take action against couple/family of an inter-caste or inter-religious marriage (or any othermarriage which does not meet their acceptance), the jurisdictionalpolice official shall cause to immediately lodge an F.I.R. under theappropriate provisions of the Indian Penal Code including Sections 141,143, 503 read with 506 of IPC.

(b) Upon registration of F.I.R., intimation shall be simultaneouslygiven to the Superintendent of Police/ Deputy Superintendent of Policewho, in turn, shall ensure that effective investigation of the crime is doneand taken to its logical end with promptitude.

(c) Additionally, immediate steps should be taken to providesecurity to the couple/family and, if necessary, to remove them to safehouse within the same district or elsewhere keeping in mind their safetyand threat perception. The State Government may consider ofestablishing safe house at each District Headquarter for that purpose.Such safe houses can cater to accommodate (i) young bachelor-bachelorette couples whose relationship is being opposed by their

Afamilies /local community/Khaps and (ii) young married couples (of aninter-caste or inter-religious or any other marriage being opposed bytheir families/local community/Khaps). Such safe houses may be placedunder the supervision of the jurisdictional District Magistrate andSuperintendent of Police.B(d) The District Magistrate/Superintendent of Police must dealwith the complaint regarding threat administered to such couple/familywith utmost sensitivity. It should be first ascertained whether thebachelor-bachelorette are capable adults. Thereafter, if necessary, theymay be provided logistical support for solemnising their marriage and/orfor being duly registered under police protection, if they so desire. AfterCthe marriage, if the couple so desire, they can be provided accommodationon payment of nominal charges in the safe house initially for period ofone month to be extended on monthly basis but not exceeding one yearin aggregate, depending on their threat assessment on case to casebasis.

D(e) The initial inquiry regarding the complaint received from thecouple (bachelor-bachelorette or young married couple) or uponreceiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/localcommunity/Khaps shall be entrusted by the District Magistrate/Superintendent of Police to an officer of the rank of AdditionalESuperintendent of Police. He shall conduct preliminary inquiry andascertain the authenticity, nature and gravity of threat perception. Onbeing satisfied as to the authenticity of such threats, he shall immediatelysubmit report to the Superintendent of Police in not later than oneweek.F(f) The District Superintendent of Police, upon receipt of such

F(f) The District Superintendent of Police, upon receipt of suchreport, shall direct the Deputy Superintendent of Police incharge of theconcerned sub-division to cause to register an F.I.R. against the personsthreatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C.Additionally, the Deputy Superintendent of Police shall personallysupervise the progress of investigation and ensure that the same isGcompleted and taken to its logical end with promptitude. In the course ofinvestigation, the concerned persons shall be booked without anyexception including the members who have participated in the assembly.If the involvement of the members of Khap Panchayat comes to thefore, they shall also be charged for the offence of conspiracy orHabetment, as the case may be.

III. Punitive Measures:-

(a) Any failure by either the police or district officer/officials tocomply with the aforesaid directions shall be considered as an act ofdeliberate negligence and/or misconduct for which departmental actionmust be taken under the service rules. The departmental action shall beinitiated and taken to its logical end, preferably not exceeding six months,by the authority of the first instance.

(b) In terms of the ruling of this Court in Arumugam Servai(supra), the States are directed to take disciplinary action against theconcerned officials if it is found that (i) such official(s) did not preventthe incident, despite having prior knowledge of it, or (ii) where theincident had already occurred, such official(s) did not promptlyapprehend and institute criminal proceedings against the culprits.

(c) The State Governments shall create Special Cells in everyDistrict comprising of the Superintendent of Police, the District SocialWelfare Officer and District Adi-Dravidar Welfare Officer to receivepetitions/complaints of harassment of and threat to couples of inter-castemarriage.

(d) These Special Cells shall create 24 hour helpline to receiveand register such complaints and to provide necessary assistance/advice and protection to the couple.

(e) The criminal cases pertaining to honour killing or violence tothe couple(s) shall be tried before the designated Court/Fast Track Courtearmarked for that purpose. The trial must proceed on day to day basisto be concluded preferably within six months from the date of takingcognizance of the offence. We may hasten to add that this directionshall apply even to pending cases. The concerned District Judge shallassign those cases, as far as possible, to one jurisdictional court so as toensure expeditious disposal thereof.

54. The measures we have directed to be taken have to becarried out within six weeks hence by the respondent-States. Reportsof compliance be filed within the said period before the Registry of thisCourt.

55. The Writ Petition is, accordingly, disposed of. There shall beno order as to costs.

Kalpana K. Tripathy

Petition disposed of.