SC Holds Khap Interference In Marriage Of Adults Illegal

It has to be stated at the very outset that the Supreme Court has rendered a landmark judgment in the case of Shakti Vahini v Union of India and others on March 27, 2018 whereby it held that the right of adult individuals to choose their life partners was above class honour and that it was illegal for khap panchayats to summon and punish couples for this! The Apex Court categorically ruled that any attempt by khap panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely 'illegal'. It also ordered that such activities of khap panchayats 'are to be stopped in entirety' and called upon Parliament to come up with a suitable legislation. It also laid down 'preventive, remedial and punitive' measures.

To put things in perspective, while delivering a landmark judgment in the PIL filed by NGO Shakti Vahini in 2010 on the issue, a Bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud also laid down a slew of measures to protect inter-faith and inter-caste marriages generally objected to by the khap panchayats. It ordered authorities to take steps to protect inter-caste and inter-religious couples from honour crimes. The NGO had sought directions to state governments and the Centre to take preventive steps to combat honour crimes.

It is noteworthy that the NGO Shakti Vahini pointed out that at least 288 such cases of honour crimes were reported from Haryana, Punjab, Himachal, Delhi, UP, Bihar and other states between 2014 and 2016. CJI Dipak Misra while reading out the operative part of the judgment said that, 'These remedial, preventive and punitive measures will hold field till the legislature brings in a law'. There can be no denying it.

It may be recalled that on February 5, during the hearing the Bench said that when two consenting adults agree to enter into matrimony no individual, group or collective rights shall interfere to harass the couple. It had asked the Khaps or Indian Kangaroo courts not to behave like the conscience keeper of society, pointing out that a marriage between two adults was governed by the law. The court had said that it would set up a high-level committee consisting of senior police officers to deal with issues relating to intervention in marriages by bodies such as khap panchayats.

As things stand, a Bench of CJI Dipak Misra and Justices DY Chandrachud and AM Khanwilkar while disposing of a petition filed by NGO Shakti Vahini in 2010 sent out a very loud and firm message that, 'Honour killing guillotines individual liberty, freedom of choice and one's own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived on some notion that remotely does not have any legitimacy.'

It also must be brought out here that the Apex Court while issuing a slew of directions had asked central and state governments to take preventive, remedial and punitive steps from taking the law into their own hands. It was directed that they must provide protection to inter-caste and inter-religious couples. It was also directed that the police chief in each district should oversee the safety of such couples and take the assistance of the court to make preventive arrests to save them from harassment. In addition, it was also directed that there should be dedicated courts to deal with honour crimes and 24-hour helplines for couples to seek assistance. It was also held that the ruling will hold till a law is passed on dealing with honour crimes.

Simply put, as a first step, the Bench headed by CJI Dipak Misra directed all States to compile data of such districts/sub-districts and villages where honour crimes occurred or khap panchayats assembled in the last five years. Based on this information, 24-hour special cells will be established in such district headquarters to receive complaints from aggrieved couples facing threats from khap panchayats or such other group of persons.

Moving ahead, the Bench also directed that an officer of the rank of Deputy Superintendent of Police shall conduct a preliminary enquiry into such complaints within a week and report to the SP. If the involvement of the members of khap panchayats is found, they will also be charged for the offence of conspiracy or abetment. These district headquarters will also have a safe house to provide shelter to the runaway couple. They will be given protection by the State police, who may even provide logistical support for their marriage under police protection and allow them to stay at the safe house for a period ranging from one month to one year.

Strictly speaking, the Apex Court took both State and police to task by directing that despite complaint, if a honour crime takes place, the concerned police officer will be departmentally proceeded with and punished within six months. Meanwhile, trial in such crimes shall also conclude in six months. This is, in fact, the crying need of the hour also!

While condemning the honour crimes which can have no justification under any circumstances, the Supreme Court also held that, 'The human rights of a daughter, brother, sister or son are not mortgaged to the so-called or so-understood honour of the family or clan or the collective. The act of honour killing puts the rule of law in a catastrophic crisis…class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution…the old order has to give way to the new. Feudal perception has to melt into oblivion paving the smooth path for liberty.' The Bench also added that, 'There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing.' Without wasting any more precious time, the government must promptly act and usher in a law to appositely cover the field of honour killing as the top court has directed so explicitly!

Needless to say, while stating that khap panchayats or any other institution had no space in deciding consent in marriages, the Apex Court said that, '…the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any space for informal institutions for delivery of justice.' In other words, the Apex Court has not left even an iota of doubt that it attaches prime importance to the consent of the two adult individuals to enter into a wedlock and not to the consent of the family or community or clan! Absolutely right!

Truth be told, the Supreme Court Bench also send a loud and warning message to self-appointed guardians of society and khap panchayats by firmly directing that any kind of torture or torment or ill treatment by any assembly in the name of honour that curtails the choice of individuals relating to love and marriage 'is illegal and cannot be allowed a moment of existence' and also warned that, 'Khap panchayats or such assembly should not take the law into their hands.' Supreme Court's remarks had come when a counsel representing a khap panchayats said that it had been encouraging inter-caste and inter-faith marriages and referred to provisions of the Hindu Marriage Act which prohibit a union between ‘sapinda' relationships or close blood relatives among Hindus. What particularly irked the court was that the lawyer said that the khap had been performing its duties as the conscience keeper of society.

Without mincing any words, the Apex Court held that, 'We are on a very fundamental issue. The marriage is between two adults and it is their choice. You cannot take the law into your own hands. Khaps had no business in such matters.' Referring to several judgments including the one passed in the sensational Nitish Katara murder case, the Apex Court had said that, 'When two persons marry, if they are adults, the matter ends'. The Bench made it clear that whether a marriage was null or void or illegal could be decided by the court under the law. Very rightly said!

Curiously enough, the Centre too had pleaded with the Apex Court to put in place a mechanism to monitor crimes against women by khap panchayats saying that the police was not able to protect such women. The top court had also said that as a pilot project, it would examine the situation in three districts of Haryana and Uttar Pradesh where khap panchayats were active. The Apex Court, however, rejected the arguments by the khap panchayats that they were trying to advance awareness on same gotra marriages and maintaining sex ratio. Also, the Apex Court while coming down heavily on khap panchayats minced no words in stating most unambiguously that, 'They have 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 accordance with law. But by putting forth a stand that they are spreading awareness, they really can neither affect others fundamental rights nor cover up their own illegal acts….Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.'

Going forward, on the argument by khap panchayats that it was a 'misnomer' to call them by that name, the order said that, 'The nomenclature is absolutely irrelevant. What is really significant is that the assembly of certain core groups meet, summon and forcefully ensure the presence of the couple and the family members and then adjudicate and impose punishment.' It must be mentioned here that the Apex Court had invited khap panchayats to hear their views before issuing an order to stop them from harassing or killing couples purportedly to protect the honour of a family, caste, community or faith.

It must be also added here that the Apex Court directed that at the receipt of a complaint that a khap panchayat is to assemble, the Deputy Superintendent of Police shall try to dissuade such a meeting and if they persist, the officer shall be personally present during the meeting and even videograph the proceedings for future action. He may then submit a report to the District Magistrate/Sub Divisional Magistrate for issuing prohibitory orders under Section 144 CrPC.

As we know fully well, the Supreme Court wants Centre to make a separate law on honour killings. It must be appreciated here that Centre along with States in tandem have been actively working also since last few years in this regard. Presently, a Bill to punish honour crimes titled 'The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill' is under consideration also of the Government. 21 States out of 29 have consented also to make honour crimes a separate law altogether.

All said and done, Apex Court has made it absolutely clear that there has to be zero tolerance on honour crimes and honour killings for which there can be no excuse. Also, khap panchayats can't strike down consenting adults wedding at their own whims and fancies. CJI Misra also while writing for the Bench made it clear that, 'Despite social advancement honour killing still persists. It has to be constantly borne in mind that rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create a dent in exercise of the said right.' The Court also sent a loud and clear message by observing that, 'Feudal perceptions such as clan, caste and honour have to melt into oblivion. Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence.'