NEW DELHI: Despite hundreds of couples marrying against social barriers being hounded out or killed at the behest of Khap Panchayats in northern India, Uttar Pradesh, Rajasthan and Haryana have prepared no legal framework to counter the menace; the Supreme Court was informed on Monday. UP government in its affidavit admitted that “There was no specific legal framework to address the problem of honour killings but the Director General of Police and additional DGP have issued directions to ensure compliance with the provisions of Protection of Women from Domestic Violence Act, 2005.”
Rajasthan was relying on two circulars – one issued in 2001 and another in 2006 – to check activities of caste panchayats. Haryana, on the other hand, said it had put in place an action plan to combat honour killings. This information was collated by amicus curiae Raju Ramachandran from the affidavits filed by the states in response to a PIL by NGO “Shakti Vahini” seeking the apex court’s intervention to protect couples, who were forced to annul their inter-caste marriages or killed for defiance. The Centre said it was actively planning to amend the Indian Penal Code (IPC) to make honour killing a specific offence.
Ramachandran’s report said there was a legislative vacuum in countering Khap Panchayats and honour killings dictated by them. “Therefore, it would be appropriate for the Supreme Court to give appropriate directions to prevent atrocities in the name of honour and tradition,” he said.
He suggested that the states must be directed to immediately identify areas, where Khaps are active and the police officers in charge of these areas must take every step possible to protect any inter-caste marriages, including protection to the threatened couple. The amicus said the police must act in advance and prevent Khap Panchayat meetings aimed at taking decisions against couples in the name of honour and if required arrest key members to foil the gatherings.
Haryana, which has seen several honour killings in the past, said its action plan mandated the police not to take action for alleged kidnapping of girl by a boy till the girl’s statement was recorded by a Magistrate. The action plan directs police to provide adequate security to couples and take strict action against those who harass, intimidate or harm couples in the name of honour, it said.
The Law Commission has already circulated a proposed legislation – Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliance) Bill, 2011 – and sought public response. It proposes upto one-year imprisonment and Rs 10,000 fine for those who participate in Khap meetings convened to condemn any inter-caste marriage.
The Bill also proposed punishment of upto two years of imprisonment and Rs 20,000 fine if one was found taking steps to prevent such marriages; a three-year jail term and Rs 30,000 penalty for anyone resorting to criminal intimidation of such couples.
Two noted advocates, appointed by the Supreme Court to assist it in tackling the malady of “honour killings” of young couples by ‘khap’ panchayats, has recommended a proactive role for the police and district magistrates to curb it. The key recommendation forms part of the guidelines, formulated by senior counsel Raju Ramachandran and counsel Gaurav Agrawal, apopointed by the apex court as amicus curiae to help it, to tackle the recurring social evil, often rearing its ugly head in the northern states. The two counsel has urged a bench of justices Aftab Alam and Ranjana Prakash Desai to convert the guidelines into its directions to all states and Union territories until Parliament enacts a law on the issue. According to the guidelines, the police should play proactive role to thwart the khap (community) panchayat’s illegal diktat by providing timely help to the potential victims.
“Section 149 to 151 of the CrPC lay down the duties and powers of the police to prevent the commission of cognisable offences. The police has been empowered to arrest a person, even without a warrant, if the police officer knows of a design to commit any cognisable offence.
“In cases of Khap Panchayat, it is very necessary for the police to take timely steps so as to prevent any physical harm to the couple. Any gathering, which instigates commission of an illegal act, is an illegal gathering. It amounts to instigation to commit a crime, which may result in death of an individual.
“The State / police officials have to take preventive action / remedial action to ensure that the Fundamental Rights are protected, for which adequate powers are available in CrPC. The need is to effectively exercise those powers by the state officials,” it said.
The apex court had earlier appointed the amicus curiae while adjudicating a petition filed by NGO Shakti Vahini, which highlighted the growing phenomenon of “honour killings” and other human rights violations by extra-constitutional bodies like as khap panchayats. The report by advocates said the state governments should be directed to immediately identify districts, sub-divisions and villages which have had instances of honour killing and/ or assembly of khap panchayat in the past one year.
“The officer-in-charge of the police stations of the areas so identified should be issued directions by the district’s superintendent of police (SP) to immediately report to him if there is any instance of inter-caste marriage which comes to the notice of the local police and / or if there is any attempt by the villagers/ community to hold a khap panchayat.
“It would be the duty of the SP, as also of the district magistrate, to ensure the safety of the couple by taking such steps as may be required including, but not limited to, providing a safe house, police protection etc.
“It would be open to the SP/DM to take help of non-governmental organisations as notified by the state government,” the report said.
It said the officer in-charge/ SP may be advised to meet the self-styled decision makers of khap panchayat and reason with them that such a meeting/gathering should not be held as it is an illegal gathering and that if any decision is proposed to be taken then the police would be bound to arrest the members of khap panchayat.
“If the members of khap panchayat still plan to hold a gathering, which may cause reasonable apprehension of harm to the couple, the SP would be duty-bound to cause arrest of the members of the khap panchayat. “The Central government and the state governments as well as the National Legal Services Authority may be directed to conduct awareness programmes about the legal rights of individuals with regard to matrimonial choices,” the report added.
Last November, Haryana took a position before the Supreme Court, currently hearing the honour killing petition, that it agreed with the Centre in amending existing laws to ensure strict action against those involved in honour crimes. A few months down the line, the state took a new position, dissociating itself from the pro-Centre stand it had taken earlier.
The Tribune has in its possession two sets of affidavits that Haryana had filed in the Supreme Court in connection with the ongoing writ petition on honour killings, filed in June 2010 by community-based organisation Shakti Vahini.
In its first affidavit, the state said to the court that it supported Centre’s stand to amend existing statutes and allow stringent legal action against the perpetrators (often khap panchayat members, apart from families of victims). Later, it went back on its position and sought court’s permission to withdraw the old affidavit and file a fresh one in which it had deleted the reference to its agreement with the Centre on changes to the laws to stop honour crimes.
The first affidavit (dated November 30, 2010) was filed by BS Sandhu, Additional Director General Police, Law and Order, Haryana. It listed steps the state was taking to protect runaway couples. In the end, the affidavit explicitly mentions, “In addition to these steps, the state government fully agrees with the Central Government for amendment to the Evidence Act, the IPC, the CrPC and the Special Marriage Act in order to take strict legal action against the accused involved in cases of killing of runaway couples and to prevent harassment of couples.”
However, on April 26 this year, Kamal Mohan Gupta, counsel for the state of Haryana, approached the court, requesting for permission to withdraw the November 30, 2010, affidavit and file a new one. The court allowed a counter-affidavit but placed both affidavits (with contradictory positions) on record. The new affidavit was also filed by BS Sandhu.
The Centre, which had constituted a Group of Ministers on honour crimes, had earlier proposed making honour killings a separate offence under the IPC to bring clarity to law enforcement agencies. Another proposal was to amend the Indian Evidence Act to put the burden of proof on the accused, which means khap panchayats and family members who perpetrated killings would have to prove their innocence.
An amendment was also being conceived for joint liability of the killer and perpetrator. Another change to the Special Marriages Act was being proposed to reduce the cooling off period before a marriage is registered. The period currently is one month.
Protection home in each district to provide ‘free’ stay for first 10 days
In a novel scheme to prevent honour killings, the Haryana Government has decided to house “runaway couples” in protection homes, one in each district, where their stay will be free of charge for the first 10 days.
Under intense pressure from the Supreme Court, where a PIL has questioned the Central and Haryana Governments’ efficiency to curb the increasing rate of honour-related crimes, an affidavit filed by Additional Director General of Haryana Police spoke of an ‘action plan to combat honour killings’, being implemented by the State Government.
Of the several steps provided in the Action Plan, the most interesting is the one relating to protection of the runaway couples. As soon as the police receive intimation about such couples facing threat to their lives and liberty, the police would be duty-bound to ensure their protection and refer them to ‘Protection Homes’ for temporary stay. Every district of the State will have such a protection home to tackle similar complaints.
The initial period of stay at these homes will be free, the affidavit filed by ADGP BS Sandhu said in the pending PIL filed by NGO Shakti Vahini. It further stated, “During the said period (10 days) the threat perception shall be reviewed by a Committee (comprising Deputy Commissioner, Superintendent of Police and District Social Welfare officer).” In the event, the period of stay has to be extended, the committee will permit an additional period of stay for 10 days, for which a reasonable charge payable by the couple will be determined by the said committee.
The Action Plan prepared by the State Police makes the SP/DCP of the concerned district personally responsible for the safety and security of runaway couples, in cases where protection has been ordered by any court. On receipt of such a complaint from a couple, the police would record the statement of the girl to note her consent and age. If she was a major, she would not be handed to the custody of her parents but instead be referred to the Protection Homes. Neither the boy (husband) nor the girl (wife) would be assaulted and the police would “advise” the couple to get their marriages registered, the Action Plan stated.
While the State has claimed to have implemented all these steps, the entire action plan will be scrutinized by a bench of Justices Aftab Alam and Ranjana Desai on Monday when the PIL comes up for hearing. The petitioner NGO through its counsel Ravi kant had alleged that due to lack of a concerted action by the police and state government, the lives of several young couples who marry from different gotras/caste is jeopardized. The petition made a spirited plea for introducing “preventive steps” as in cases reported till date, the police are seen to take “reactive measures” only.
The Centre, while responding to the PIL has put the onus on states since law and order is purely a state subject under the Constitution. But the Centre is seized of a proposal to amend the Indian Penal Code to provide honour killing as a separate offence.
In this event, the Court had desired to know from the state governments on the proactive methods to be taken to curb occurrence of such instances. Haryana, which had reported the highest prevalence of such crimes, compounded by the khap panchayats who give a legal cover to such killings, was particularly questioned over its readiness to tackle such crimes.
THE TRIBUNE , CHANDIGARH WRITES A STINGING EDITORIAL ON THE LACKASIDAL APPROACH OF THE CENTRAL GOVERNMENT AND THE STATE GOVERNMENTS ON THE ISSUE OF HONOUR KILLINGS. THIS PETAINS TO THE PUBLIC INTERST LITIGATION BEING HEARD BY THE SUPREME COURT ON SHAKTI VAHINI PETITION.
THE TRIBUNE EDITORIAL
Passing the buck is a favourite hobby of sarkari babus but one wishes they do not indulge in such a pastime when an issue as vital as honour killings is under consideration. The Centre has smugly told the Supreme Court in its affidavit that police and public order are state subjects under the Constitution and it is the state’s responsibility to deal with the offences in question. That is a fact known even to school students. Can the Centre evade responsibility by taking this plea is the moot point. How serious the states are in curbing the menace can be gauged from the fact that Haryana and Uttar Pradesh, where honour crimes are the most prevalent, have not even replied to the notice sent to them by the Supreme Court full one year ago.
However, the disingenuous argument of the Centre does not stop at that either. The affidavit goes on to say that the Centre does not interfere in the personal laws of any community unless the demand comes from within the community. One wonders how the personal law comes into the picture. Nobody has the right to kill or harass someone just because he or she has married in own gotra (clan). A crime is a crime. Even if by some stretch of imagination, what happens within a clan is passed off as a “personal matter”, the fact remains that only 3 per cent of the documented cases of honour crimes involve couples married in their gotra. Most of the others relate to couples in inter-caste marriages.
The affidavit grandly says that the freedom of choice with respect to marriage has been specifically recognised and protected under our legal framework and under every personal law women have the same right to enter into a marriage with free and full consent. Ironically, this right has rarely been endowed on the young couples who dare to marry against the wishes of their families or even village elders. They are hounded, tortured and killed. Laws are very much there. Will someone kindly care to enforce them?
Washing its hands off the unabated rise in the cases of honour crimes in the country, the Centre has told the Supreme Court that it does not interfere in the personal laws of any community unless the demand comes from within the community itself. It has also said police and public order are state subjects under the Constitution and it is the state’s responsibility to deal with the offences in question.
Erroneously linking honour crimes to personal laws (there is ample evidence that majority of honour killings in India involve couples in inter-caste marriages and not those that marry within the gotra), the government, in its affidavit to the apex court, says, “Family relations in India have traditionally been governed by religious and personal laws. The freedom of choice with respect to marriage has been specifically recognised and protected under our legal framework and under every personal law women have the same right to enter into a marriage with free and full consent. At the same time, given the cultural and social diversity of the country, the government has adopted a policy of non-interference in the personal laws of any community…”
Ironically, a study on honour-related deaths in India, commissioned by the National Commission for Women, found in July last year that only 3 per cent of the documented cases of honour crimes involved couples married within their gotra. “In this petition, there is no meaning of the mention that the government does not interfere in the personal laws of communities. Honour crime is an issue of a couple’s freedom of choice to marry and their human rights, nor of personal laws. The Centre has a Ministry of Women to ensure the wellbeing of the fair sex. It can’t escape by saying that police and public order are state subjects,” Rishi kant of Shakti Vahini, the petitioning NGO, told The Tribune.
The petitioners will now seek an urgent hearing before the Supreme Court considering Haryana and UP, the biggest reporters of honour crimes, haven’t replied to the matter in a year. The case was filed in June last year.
On the other front also, the Home Ministry’s affidavit in the matter inspires little hope. Except mentioning that the government has constituted a Group of Ministers to debate the need of amending the IPC or a separate law on honour killings, the affidavit steers clear of stating what immediate steps the Centre was taking to prevent such killings and if it was doing enough to publicise SC’s directions in the matter, including the one that said the DCs and the SSPs would be responsible for any such crime in their area.
Haryana, UP ignore notice
Haryana and UP have not replied to the notice sent to them by the Supreme Court which is hearing a petition on what the state governments and the Centre are doing to prevent honour killings in India. The case was filed in June, 2010.
NILANJANA S ROY IN THE NEW YORK TIMES / INTERNATIONAL HERALD TRIBUNE
NEW DELHI — A little more than an hour’s drive away from the capital, the rule of law yields to a more primitive form of justice. In the northern state of Haryana, in large parts of Uttar Pradesh and in Tamil Nadu in the south, women’s and civil rights advocates have expressed growing concern over the often deadly verdicts passed by local councils known as khap panchayats.
The councils, usually all male and held together by caste or clan ties, hear local disputes, and their extrajudicial verdicts are taken seriously, especially in the more conservative parts of northern India.
According to Shakti Vahini, a nongovernmental organization that has been advocating that the government take punitive action against councils that decree or abet violence against women and minorities, the main umbrella body in northern India, the Sarv Khap Panchayat, has 300 subordinate councils, controlling roughly 25,000 villages in Haryana, Punjab, Uttar Pradesh, Madhya Pradesh and Rajasthan.
The verdicts of these councils have often been chilling for women.
In 2004, the Tevatia clan council issued a decree stating that families with fewer than two sons could not approach a village council for the settlement of property disputes. The implication was that families with daughters did not deserve equal consideration.
After the 2004 tsunami ravaged Tamil Nadu, journalists noted that single and widowed women had been excluded from financial relief and compensation for losses. Local councils argued that they were not entitled to a share, because their families could take care of them. And over the past decade, an ugly pattern of so-called honor killings and punitive rapes ordered by various community councils has emerged, as the Indian Supreme Court recently noted with alarm.
Last month, the Supreme Court spoke out against the councils in a landmark ruling by Justices Markandeya Katju and Gyan Sudha Mishra. The ruling marked the first time the court had condemned the role of councils in honor killings and other crimes against women and Dalits, formerly known as untouchables, and had directed state officials to initiate criminal proceedings against councils whose edicts led to violence.
“There is nothing honorable in honor killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder,” the justices said. “Moreover, these acts take the law into their own hands, and amount to kangaroo courts.”
The councils reacted angrily to the ruling, with the Sarv Khap Panchayat declaring its intention to file a review petition.
For Jagmati Sangwan, president of the Haryana All India Democratic Women’s Association, the court’s stand was welcome.
Ms. Sangwan, who also teaches women’s studies at Maharishi Dayanand University in Rohtak, Haryana, has been campaigning against the local councils since 2002, when she led a group of women into a meeting of the Rohtak council to protest the exclusion of women. (A few councils have begun to allow women to observe the proceedings, though there are no women serving on the Sarv Khap Panchayat.)
“A ban on the khap panchayats is not practical,” said Ms. Sangwan in an interview. “They will come back in some form or the other. What we need are working laws that will punish the councils when they violate women’s rights and civil rights. There had been no attempt to punish the council representatives before this verdict — there is a lack of willingness at the state level. The court’s verdict might bring some change, even if it’s slow.”
Over the last decade, the local councils have taken a hard line on the social changes that swept across India, seeking to ban women from dancing and wearing jeans, and trying to prevent young women from using mobile phones. In Tamil Nadu this year, a local council declared a social boycott on a woman for breaking tradition by filing a domestic violence case against her uncle and other family members.
But the darkest legacy of these extrajudicial courts has been a string of honor killings. Ravi Kant, a lawyer and a founder of Shakti Vahini, said the organization’s research found a relationship between the local power of the community councils and a rise in such killings. In districts where councils play an active role, there have been more honor killings than in districts where the councils are dormant or absent. Shakti Vahini recorded 121 honor killings since 2005 in Uttar Pradesh, Haryana, Punjab and Delhi, most of them the result of council edicts.
In 2008, the village of Balla in Haryana witnessed the killing of a couple by family members for the crime of marrying within the same gotra, or caste family, which is forbidden by tradition. In 2009, the Banawala council declared a marriage illegal for similar reasons. The husband was killed by local villagers, while his wife was beaten and confined to her family’s home.
The most notorious case has become a kind of shorthand. In rural Haryana, people mention not the Manoj-Babli murders, but simply “Manoj-Babli” — referring to the killing of a young couple by members of the girl’s family and to a local court ruling that became the first in modern Indian history to find council members guilty of incitement to murder. In the wake of the verdict, activists have been pressing for stronger laws and enforcement, and the Supreme Court has directed other courts to classify honor killings among the rare crimes that take the death penalty.
“The root cause behind all of the violence,” said Ms. Sangwan, “is the need to disenfranchise women. The idea that women have a democratic right to marry the person of their choice is deeply threatening to the panchayats. The foundational issue is a question of property rights.”
She was referring to the strong preference in Haryana and Uttar Pradesh in particular for women to marry outside their villages, on the assumption that a woman who moves away can lay less claim to her paternal inheritance.
“The violence has been there for years in our society, but at least now it’s coming into the light,” she said.
In the Haryana village that gained notoriety for the Manoj-Babli murders, Manoj’s sister Seema Kumari spoke of her family’s fight to get justice for her brother and sister-in-law, with the case under review by the Supreme Court.
“We have gone through so much,” she said. “But one should never give up. It’s not just about us. It’s about millions of people who, in spite of the obstacles, fight for justice.”