CHAPTER - FIVE

JUDICIAL RESPONSE TO THE ISSUES OF HONOUR KILLING IN

INDIA

5.1 INTRODUCTION

As already discussed above, several killings take place in the name of honour. Honour
killing is nothing but a killing that takes place in the name of customary practices
prevailing in the society. So, as per the customs prevailing in the society women is
always considered as a mark of respect of the family and thr reputation of the family
is always attached to the women. In case the girl is found defying the reputation, she
will have to face dire consequences. Every year many women are killed for the sake
of the Honour of the family. In this new and modern world where there is no space for
the old tradition and customs. There are many new legislations at national and
international level to safeguards the human rights of an individual. But still
throughout the world many killings take place in the name of customary practices
which prevail in the society. In India we have National Human Rights Commisssion,
National Commission for Women for the redressal of the greivances. But these
Commissions are not given the power to punish the person who is found violating the
human rights of the other person.

But, till today there is no special law to deal with the menace of honour killing crime
and because of which the preparators may escape the punishment which is provided
by the general penal law. So, the need of today is to have a new law which shall deal
specially with Honour Killing incidents. Indian Constitution is a written Constitution,
where the organs of the government are all mentioned and also the power and
function of these organs of the government. When the power and functions of these
organs of the government are clearly mentioned and as per Article 50 of the
Constitution of India the organs are restricted not to interfere in the functioning of the

1
other organ. Judiciary being one of the organs of the government is assigned with the
function to provide justice to the people of the country and also to protect the rights of
them against the violation by any person or the state. It also acts as the interpreter of
law which means when legislature has made a law so, it is the function of Judiciary to
interpret the law. As per the Constitution, Supreme Court is the apex court of the
country and all the other courts are below it. These lower courts are also bound to
follow the decision passed by the Supreme Court on a particular issue. It means the
decision passed by the Supreme Court act as a precedent for the other courts of the
country. Independence of the Judiciary being the basic feature of the Constitution of
India and which can’t be amended or taken away. For this reason, people of the
country have immense faith in the Judiciary of the country. Suprme Court have
always played proactive role in giving justice to the victim.

Researcher here in this chapter will discuss about the role of Judiciary especially in
regard to dealing with cases of honour killing. There are various decisions which are
passed by the Supreme Court and the high courts of the country for honour killing
cases. The Judiciary has always shown an immense interest to curb any social evil
practices which are prevailing in the society. For curbing these evil customary
practices, the Supreme Court from time to time issued the directions to the central and
the state government to take strict action against those persons who are found
involved in the commission of the offence. Judiciary by playing its proactive specially
in regard to protecting the fundamental rights of the individual have always been
appreciated. To make law is the function of the legislature but judiciary by judicial
activism also makes the law and they have a great influence over the implementation
of national policies. In India judicial system being unified one where Supreme Court
is considered as the highest court and all the courts below it. So, it becomes the duty
of the Supreme Court to act as a guardian to the fundamental rights of the people and
also to interpret the law when required to give clarity to the law. The Supreme Court
being the highest court is also considered as the highest appellate court in civil as well

2
as criminal matters. It also interprets the law passed by the Parliament and also struck
of the law which is found inconsistent with the Constitution of India. All the decision
which are passed by the Supreme Court are followed by all the lower courts of the
country. It means that the decision becomes a precedent on a particular issue and the
other courts are bound to follow the same.

Independence of Judiciary being the basic feature of the Constitution which cannot be
amended and also cannot be taken away. Judiciary doesn’t ave any interference from
the other organs of the government and being impartial while deciding the case it
enjoys immense faith of the people of the country. It shows that Judiciary enjoys
immense public confidence and because of its impartial attitude people of the country
have immense belief in the judiciary.

5.2 SIGNIFICANCE OF JUDICIARY IN INDIAN SOCIETY

There are three organs of the government in India. They are legislature, Executive and
Judiciary. The function of Legislature is to make laws and the function of Executive
to execute laws and the Function of the Judiciary is to protect law. All the tree organs
are important in the proper functioning of the Administration of the country. The
power and the function of all the three organs are clearly mentioned in the
Constitution. Judiciary is clearly given the function of imparting justice to the people
by judicially applying of their minds. While deciding the case the judiciary should
follow the principle of natural justice and each case to be decided individually on its
own merits. Judiciary is considered to be the adjudicating authority of the country and
whose main function is to decide upon the cases which are brought before it. It acts as
a guardian to the fundamental rights of the people and in case they are violated,
Judiciary is to be approached for the same. So, it the Judiciary who is assigned with
the function of protecting the fundamental rights of the people and also to interpret the
law which is made by the legislature and in case if ti is found inconsistent with the

3
Constitution to struck down the law and it also make certain laws through he
processes of judicial activism, in case no law exists on that point.

In issues related to Honour Killings, certain direction has been issued to the central
and the state government totake action against the person who are engaged either in
abetting, instigating or conspiring or in the commission of the said offence. But it is
shame, where generally all the laws are codified and have a written Constitution, still
we don’t have any law to cover the cases of Honour Killing despite the fact that the
said crime is increasing day by day in the society. In India we, have the principle of
‘rule of law’ that is applicable which says that no person is above law and every
person whether he belongs to high class or the low class is equal before the law and
bound to follow the law of the country. It is the function of the judiciary to see that
‘rule of law’ is maintained in the country and also to have a check over the
government that it fuctions according to the law of the country.

5.3 FUNCTION OF INDIAN JUDICIARY

The Constitution of India has clearly mentioned the powers and functions of all the
organs of the government. In which the Judiciary is assigne with the work to do
justice. Along with the powers and functions assigned to the organs of government,
Articl 50 of the Constitution also restrict the other organ to interfere in the functioning
of the other organ of the government.the Judiciary who is assigned with the function
of protecting the fundamental rights of the people and also to interpret the law which
is made by the legislature and in case if it is found inconsistent with the Constitution
to struck down the law and it also make certain laws through he processes of judicial
activism, in case no law exists on that point.While deciding the case judiciary has to
apply its judicial mind i.e. the order passed by the court must be a reasoned order and
should not be an arbitrary decision because the main function of judiciary is provide
justice on the principle of natural justice. While deciding the cases of Honour Killing
the judiciary has to apply its judicial mind in deciding the case. As till date India

4
doesnot have special law to deal with the cases of Honour Killing. So, there is more
responsibility upon the judiciary to provide justice to the victims of Honour Killing by
deciding each case individually and also by playing a proactive role. In its various
decisions the judiciary has considered honour killing as the most heinous crime and
also time to time issued certain directions to the central and the state government to
take stringent action against the persons who a commit such offence. Judiciary itself
takes serious action against the offenders by punishing them, if found guilty of the
offence.

For example, Article 21 contains provisions for protection of the life and personal
liberties of persons. In the case of State of Maharashtra v. Madhukar Naryan

Mandikar1 the court observed that “Even a woman of easy virtue is entitled to
privacy and no one can invade her privacy as and when he likes. So, also it is not
open to any and every person to violate her person as and when he wishes. She is
entitled to protect her person if there is an attempt to violate it against her wish. She
is equally entitled to the protection of law. Therefore, merely because she is a woman
of easy virtue, her evidence cannot be thrown overboard. At the most the officer
called upon to evaluate her evidence would be required to administer caution unto
himself before accepting her evidence.”So, it was clearly held that every woman
whether she is of easy virtue has the right to privacy and no person has the authority
to intrude into her privacy. Article 21 of the Constitution includes the right to privacy
also.

The main function of the Judiciary is to interpret law and also to declare the law
invalid if found inconsistent with the Constitution of India. In certain instance it also
guides the state to make the law as per the requirement of the society.By setting the
precedents it also makes law and the lower courts in the country are bound to follow
the same.

1
(1991) 1 SCC 57 at 62

5
For example, in Vishakha v. State of Rajasthan2the Supreme Court held that “Each
such incident results in violation of the fundamental rights of 'Gender Equality' and
the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15
and 21 of Constitution. One of the logical consequences of such an incident is also the
violation of the victim's fundamental right under Article 19(1)(g) 'to practice any
profession or to carry out any occupation, trade or business'. Such violations,
therefore, attract the remedy under Article 32 for the enforcement of these
fundamental rights of women. This class action under Article 32 of the Constitution is
for this reason. A writ of mandamus in such a siltation, if it is to be effective, needs to
be accompanied by directions for prevention; as the violation of fundamental rights of
this kind is a recurring phenomenon. The fundamental right to carry on any
occupation, trade or profession depends on the availability of a "safe" working
environment. Right to life means life with dignity. The primary responsibility fro
ensuring such safety and dignity through suitable legislation, and the creation of a
mechanism for its enforcement, is of the legislature and the executive. When, however,
instances of sexual harassment resulting in violation of fundamental rights of women
workers under Articles 14, 19 and 21 are brought before us for redress under Article
32, an effective redressal requires that some guidelines should be laid down for the
protection of these rights to fill the legislative vacuum.”

And the court further while formulating the guidelines observed that “In the absence
of domestic law occupying the field, to formulate effective measures to check the evil
of sexual harassment of working women at all work places, the contents of
International Conventions and norms are significant for the purpose of interpretation
of the guarantee of gender equality, right to work with human dignity in Articles 14,
15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment
implicit therein. Any International Convention not inconsistent with the fundamental

2 . (1997) 6 SCC 241 at 247

6
rights and in harmony with its spirit must be read into these provisions to enlarge the
meaning and content thereof, to promote the object of the constitutional guarantee.”

The guidelines laid down by the judiciary were applicable toboth public as well as
private employers in order to curb the sexual harassment at work place and these were
also followed. It was only after 15 years of issuing such guidelines the law titled
“Sexual Harassment of Women at Work Place (Prevention, prohibition and redressal)
Act 2012”. This proves that the judiciary has always acted as the custodian of the
rights provided in the Constitution. It has also acted to uplift the status of women in
the society.

Sh. Bodhisattwa Gautam v. Subhra Chakraborty3 the court observed that,

“Unfortunately, a woman, in our country, belongs to a class or group of society who
are in a disadvantaged position on account of several social barriers and
impediments and have, therefore, been the victim of tyranny at the hands of men with
whom they, fortunately, under the Constitution enjoy equal status. Women also have
the right to life and liberty; they also have the right to be respected and treated as
equal citizens. Their honour and dignity cannot be touched or violated. They also
have the right to lead an honourable and peaceful life. Women, in them, have many
personalities combined. They are Mother, Daughter, Sister and Wife and not play
things for centre spreads in various magazines, periodicals or newspapers nor can
they be exploited for obscene purposes. They must have the liberty, the freedom and,
of course, independence to live the roles assigned to them by Nature so that the
society may flourish as they alone have the talents and capacity to shape the destiny
and character of men anywhere and in every part of the world.”

3
(1996) 1 SCC 490 at 500

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5.4 WRIT JURISDICTION

In the beginning ‘Writ’ was nothing but a letter or command issued from the king.
The word ‘writ’ is derived from (anglo- saxon word gerrit, and the latin -breve which
means a formal written order issued by a body with administrative authority generally
it is the judicial power given to Judiciary. In India, thwe power to issue writs is given
to the Supreme Court and High Court under Article 32 and Article 226 of the
Constitution of India. Generally, the writs are issued to protect the fundamental rights
of the people. For filing the writ petiton the person doesnot have to follow the normal
process of going to the lower court rather thy can directly go to Supreme Court or the
High Court in case of violation of his fundamental rights.

There are five writs which can be issued by the Supreme Court and the High CourtIn
cases of violation of fundamental rights, the courts are given the authority to issue any
directions, orders or writs including writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo-warranto, and Certiorarito protect the rights of
individual.

By virtue of Article 13, the Supreme Court of India has been given the power of
Judicial Review which means to declare any law made by the legislature which is
found to be inconsistent with the Constitution of India. The main object giving the
power of judicial review to the Supreme Court is to keep the other organs of the
government within their limits as provided by the Constitution. In later seventies our
Judiciary has also developed the concept of ‘Public Interest Litigation’ and has
switched over from the concept of ‘locus standi’ in which the person whose rights
were violated can only go to the court but after the concept of PIL now it can be any
other person who can file a writ petion on behalf of the other person in case his rights
are violated. In case of violation of Fundamental Rights by the State, the person may
directly invoke the powers given to Supreme Court and the High Court under Article
226 and Article 32 of the Constitution of India.

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Dr. Babasaheb Ambedkar when asked to express his views upon Article 32 of Indian
Constitution in the parliament, “If I was asked to name any particular Article in this
Constitution as the most important – an Article without which this Constitution would
be a nullity – I could not refer to any other Article except this one... It is the very soul
of the Constitution and the very heart of it.”4 Merely mentioning the fundamental
rights in the Constitution would be meaningless until and unless the proper machinery
is established to provide relief in case these rights are violated. The fundamental
rights provided in the part III of the Constitution cannot be suspended except in the
case of emergency as given in Article 358 and Article 359 of the Constitution. So, in
case of violation of fundamental rights during the emergency the person cannot move
to the Court. But as soon as the emergency ceases the violation of these fundamental
rights can be challenged in the court in case they were violated by the executive
machinery and the same can be decided on merits of the case. In case after the
cessation of emergency rule, Parliament passes any law in order to protect the action
of executive machinery during the time of emergency in such case the law which is
passed by the legislature must be scrutinized before its implementation.

It is true that a declaration of fundamental right is meaningless unless there is

effective machinery for the enforcement of the rights. It is remedy which makes the
right real. If there is no remedy there is no remedy at all.

The High Courts under Article 226 of the Constitution of India are provided with the
similar jurisdiction as given to Supreme Court for issuing writ Under Article 32 in
case of violation of fundamental rights of the individual. But the powers given to the
High Court under Article 226 are the wider powers given to the High Court as
compared to power of Supreme Court under Article 32 of the Constitution. It is
observed that ones the writ is filed n the High Court under Article 226 and is decided
by the court on merits, the petition on the same facts and issues for claiming the same

4
See Constitutional Assembly Debate, vol. II, p. 953

9
relief to the Supreme Court cannot be file, the reason being the principle of Res-
Judicata. But here the parties have the right to file an appeal against the decree or
order passed by the High Court but it cannot be set aside under the powers given to
Supreme Court under Article 32. The power given under Article 226 is wider powers
as compared to powers given U/A 32. As the High Court is also given the authority to
take up the issues where there is violation of the Constitutional Rights also. Hence the
duty of the High Court is not only to protect the fundamental rights but also to protect
the other Constitutional rights. In case of violation of fundamental right sthe person
has the right to approach the high court or the Supreme Court.

But in P.N. Kumar v. Municipal Corporation of Delhi5 the Supreme Court in

the case held that “The scope of the powers of the High Courts under Article 226 of
the Constitution is wider than the scope of the powers of this Court under Article 32
of the Constitution. The relief prayed for in the petition is one which may be granted
by the High Court. Any party aggrieved by the decision of the High Court can appeal
to this Court. That some case involving the same point of law is pending in this Court,
is no ground for this Court to entertain a petition, by-passing the High Court. If the
parties get relief in the High Court, they need not come to this Court, and, to that
extent, the burden on this Court is reduced. This Court has no time today even to
dispose of cases which have to be decided by it alone. A large number of cases have
been pending in this Court for ten to fifteen years. If no fresh cases are filed in this
Court thereafter, this Court, with its present strength of Judges, may take more than
15 years to dispose of all the pending cases. If the cases, which can be filed in the
High Courts, are filed there and not in this Court, the work of this Court in its
original Jurisdiction, which is a time consuming process, can be avoided, and the
time saved by this Court by not entertaining the case which may be filed in the High
Courts, can be utilized to dispose of the old matters.This Court will also have the

5
(1987) 4 SCC 609 at 610

1
benefit of the decisions of the High Courts when it deals with an appeal against such
a decision.”

5.5 JUDICARY VIEW ON HONOUR KILLING

Indian society being a custom based society where there are number of customs which
are followed in the society since the inception of society. This shows that the society
is still tied up with the chain of customary practices prevailing in the society. There
are certain good customary practices which help in the development of the society and
on the other hand there might be certain bad practices which are still followed in the
society and these practices somewhere restrict the growth and development of the
country. Few of them are child marriage, sati pratha, dowry, female foeticide, rape,
sexual assault of women and Honour Killing etc.

So, it becomes the duty of every individual in the society to change their mind set up
towards the rudimentary practices that are prevailing in the society. It also becomes
the prime duty of the government at centre and state level to make rules in order to
curb these evil practices and to punish the person who is found performing or being
part of these practices.

Honour Killing being one of these evil practices. It is practiced in India from the
ancient period. Judiciary have also tried to stop the happening of the incidents of
Honour Killing by passing the judgment in which it has clearly issues directions to the
stat and central government to take strict action against the person who abets,
instigates, or commits this barbaric practice in its recent judgment of Shakti Vahani
v. U.O.I6

6
(2018) 7 SCC 192 at 216

1
In State of Uttar Pradesh v. Krishna Master and anr. 7 the Supreme Court has
restored the judgment passed by the trial court in which the court has awarded life
imprisonment to three persons but the case related to Honour Killing where the
accused deserves more severe punishment.

In another case of Lata Singh v. State of U.P.8 where Justice Ashok Bhan and Justice
Markande Katju while deciding the case held that the petitioner being major is free to
marry by her choice and the Hindu Law and any other law doesnot prohibit to
perform inter-caste marriage. So, there is no offence committed by the husband and
relatives of the husband of the petitioner. The court further held that various news
which are coming to our knowledge where the young girls and boys are harassed,
threatened if they marry outside their caste. But these threats are wholly illegal and
person who commits the same must be severly punished. They further expressed their
view that the caste system which is prevailing in the society is a curse to the nation
and performance of inter-caste and inter-religion marriage is a step forward to have a
Uniform Civil Code. In order to curb Honour Killing the court further issued
directions to the state authorities to see that people who perform inter-caste marriage
should be protected as inter-caste and inter-religion marriages are in national interest
as they will help in eradicating the caste system prevailing in the society.

“We, therefore, direct that the administration/police authorities throughout the

country will see to it that if any boy or girl who is a major undergoes inter-caste or
inter-religious marriage with a woman or man who is a major, the couple are not
harassed by any one nor subjected to threats or acts of violence, and any one who
gives such threats or harasses or commits acts of violence either himself or at his
instigation, is taken to task by instituting criminal proceedings by the police against
such persons and further stern action is taken against such persons as provided by

7
(2010) 12 SCC 324 at 346
8
(2006) 5 SCC 475 at 480

1
law. We sometimes hear of `honour' killings of such persons who undergo inter-caste
or inter-religious marriage of their own free will. There is nothing honourable in such
killings, and in fact they are nothing but barbaric and shameful acts of murder
committed by brutal, feudal minded persons who deserve harsh punishment. Only in
this way can we stamp out such acts of barbarism.”9

It seems that judiciary is playing a pivotal role in protecting the people from
customary evil practices by passing the judgments from time to time against the
prevailing evil customary practices. The decisions which are passed by the judiciary
from time to time also contribute to the society and the nation by not only providing
justice to the victim but also protecting the rights of the individual before they are
violated. These are beneficial to the entire society, as well as nation. Judiciary not
only provides justice to the society, but also protect the fundmental rights which
might be violated.

5.6 JUDICIAL ANALYSIS OF HONOUR KILLING

Judiciary has always played an important role in protecting the fundamental Rights of
the individual and alsoproviding justice to them by passing the judgments. Some of
these rights are violated in the name of customary practices prevailing in the society
and Honour Killing being one such practice. But the Judiciary has always considered
it as a serious issue and which needs to be curbed. For the same the Judiciary has
taken action against the person involved in such crime. By providing certain
guidelines it helps the legislature to make a law on the same issue. After going
through the cases which are decided by the judiciary, the researcher is of the view that
judiciary also plays an important role in eradication of any customary evil practice
prevailing in the society and also formulating the law for the same.

9
(2006) 5 SCC 475 at 480

1
5.6.1 PREVAILING CASTE SYSTEM IS A CURSE TO NATION

In Arumugam Seervai v. State of Tamil Nadu 10 the present case is against the
appellant where he has used certain words which are usd in derogatory sense to insult
someone. While deciding the appeal the Supreme Court the Supreme Court has
observed that the words ‘pallan’, ‘pallapayal’, ‘parayan’ and ‘paraparaya’ are used
with the intention to insult the other person and accordingly highly objectionable and
also an offence under SC/ST Act. The court further held that today when we have
entered in the modern world, every person must try not to hurt the feeling of the other
person on basis of his caste, religion, tribe, anguage etc. The court stating the object
of the SC/ST Act held that the Act aims to prevent any kind of humiliation and
harassment to the person belonging to SC/ST community and also stated that in the
era of democracy and equality there should be no looking down upon the any person.
Hence, no one sold use such words while addressing any person which may hurt his
feelings.

While reiterating the judgment passed in Lata singh case where it was clearly
mentioned that the court has held that various news which are coming to our
knowledge where the young girls and boys are harassed, threatened if they marry
outside their caste. But these threats are wholly illegal and person who commits the
same must be severly punished. They further expressed their view that the caste
system which is prevailing in the society is a curse to the nation and performance of
inter-caste and inter-religion marriage is a step forward to have a Uniform Civil Code.
In order to curb Honour Killing the court further issued directions to the state
authorities to see that people who perform inter-caste marriage should be protected as
inter-caste and inter-religion marriages are in national interest as they will help in
eradicating the caste system prevailing in the society and also for the establishment of
Uniform Civil Code.

10
(2011)6 SCC 405 at 411

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5.6.2 DIRECTION TO PROVIDE POLICE PROTECTION BY JUDICIARY

The judiciary from time to time by passing the judgment issued certain directions to
the state authorities to protect the young couple who perform inter-caste or inter-
religion marriage by their choice and are threatened by the family members or are
facing atrocities at the hands of family members or the close relatives or by Khap
Panchayat must be given certain police protection in order to safeguard their lifesIn

case of Geeta Sabharwal v. State of Haryana11 in this case the Punjab and Haryana
High Court observed that any man or woman who are major are free to perform
marriagea as per their choice and the parents doesn’t approve such marriage to an
extent cut off the social relationship with the son or daughter but can’t threaten them.
In case of threatening a criminal proceeding against such person can be initiated by
the police.

In these cases the Hon’ble court directed to the administration and police authorities
thought out the country will see to it that if any boy or girl who is a major undergoes
inter caste marriage or inter religious marriage with woman or man who is a major,
the couple are not harassed by any one nor subjected to threats or facts of violence
and anyone who gives such threats or harasses or commits acts of violence either
himself or at his instigation is taken to task by instituting criminal proceedings by the
police against such person and further stern action is taken against such person as
provided by law.

Similarly, in Ashok Kumar v. State12the High Court of Punjab and Haryana stated
that, the young couples who perform marriage by their choice are threatened and
followed and times even they are killed in the name of the protecting Honour of the
family. In such cases the family members of the girl generally lodge a complaint for
rape and abduction against the boy and his family. In several times the state has not

11. GeetaSabharwal v. State of Haryana 2008, High Court of Punjab and Haryana,
12. Ashok Kumar v. State of Punjab and Haryana (2009) DMC 120

1
taking any type of precaution about such killing. While passig judgments related to
Honour Killing cases the judiciary has issued direction to the state authorities to
develop a mechanism to redress the grievance of these young couple and also to
provide protection until they are under fear of threat.

5.6.3 RIGHT TO MARRIAGE

Article 21 Constitution of India is a broader Aritcle which means the fundamental

rights which are not specifically mentioned in the Constitution are generally covered
under Article 21 i.e. Right to life and Liberty. Right to marriage also doesnot find a
special mention in the Constitution but generally covered under Article 21 itself. So,
Article 21 guarantees liberty to live a healthy life but as per the procedure established
by law. No person is given the right to interfere in the liberty of the other person. But
when it comes to matrimonial alliances, it is the family who choose a life partner for
the girl or the boy and which clearly deprives them to enjoy their right to life and
liberty. The couple who marry by their choice by performing inter-caste or inter-
religion marriage is considered to have brought dishonour to the family and as a
consequence they are killed by the family members or their relatives. Liberty to marry
by their choice is generally withdrawn by the customary practice prevailing in the
society.

In Allgever v. Louisana13, is the land mark case of United States on the deprivation
of the liberty of the individual where the Supreme Court of the United States clearly
held that State doesnot have the authority to make law in such manner as to deprive a
person of his personal liberty.

In the recent days number of incidents are coming to our knowledge where the young
couples are killed in the name of Honour of the family. But the Supreme Court
considering a special issue has condemned the barbaric act of killing in order to

13. Allgever v. Louisana (1897) 165, U S 578

1
protect the Honour of the family and also directed the state authorities to take strict
action against the person who is found involved in commission of the offence.

Justice Markande Katju has observed in the case of Lata Singh v. State of Uttar

Pradesh14, on honour killing issue that, over the several instances of harassment,
threats and violence against young men and women who marry outside their caste
and held that, such acts or threats or harassment are wholly illegal and those who
commit them must be severely punished”. Court also gives trace on that; Inter-caste
marriages are in fact the national interest as they will result in destroying the caste
system.

Further, more the bench of court said that, ‘once a person becomes a major; he or she
can marry whosoever he or she likes. If the parents of the boy or girl do not approve
of such inter-caste or inter-religion marriage the maximum, they can do is that they
can cut off social relations with the son or daughter, but cannot give threats or commit
or instigate acts of violence and cannot harass the person who undergoes such
intercaste or inter-religious marriage’.

It is observed that, in order to control and eradication of honour killing evil practices,
the bench of court directed to the administration and police authorities throughout the
country see it, that if any boy or girl who is a major undergoes inter-caste or inter-
religious marriage with woman or man is a major, the couple are not harassed by any
one nor subjected to threats or acts of violence and anyone who gives such threats or
harasses or commits acts of violence either himself or at his instigation is taken to task
by instituting criminal proceedings by the police against such persons and further
stern action is taken against such persons as provided by la’. Moreover, Court said
that their nothing honourable in such killing and in fact they are nothing but barbaric

14
(2010) 12 SCC 324 at 346

1
and shameful acts of murder committed by brutal and feudal minded persons who
deserve death sentence.

In Shiv Kumar Gupta Alias Raju v. State of U.P. and ors. 15 in this case the girl
Rani Gupta filed a petition against her father that her father is forcing her to marry a
person whom she doesnot like and at the same time entered into a marriage by her
own choice. The court held that she being major has the right to choose her own life
partner and forcing her to marry someone is depriving her right to life and liberty
provided by the Constitution.

5.6.4 DIRECTION TO THE STATES TO SUPPRESS THE EVIL

CUSTOMARY PRACTICES

Judiciary from time to time issued the directions to the state and the central
government to take steps in order to eliminate crimes and suppressed the evil
practices e.g. Dowry, sati, Honour killing, untouchability etc prevailing in the society.
In G. Krishanan s/o Govindan v. Union of India 16, The present petition was filed
before the Court for challenging the validity of Sec 3 and 18 of SC/ST Act wherein,
validity of Section 18 is already upheld by the Supreme Court.While deciding the case
Hon’ble Justice Markandey Katju, observed that, that the words ‘pallan’, ‘pallapayal’,
‘parayan’ and ‘paraparaya’ are used with the intention to insult the other person and
accordingly highly objectionable and also an offence under SC/ST Act. The court
further held that today when we have entered in the modern world, every person must
try not to hurt the feeling of the other person on basis of his caste, religion, tribe,
anguage etc. The court stating the object of the SC/ST Act held that the Act aims to
prevent any kind of humiliation and harassment to the person belonging to SC/ST
community and also stated that in the era of democracy and equality there should be

15
(9TH March 1999, Allahabad High Court)
16
. G Krishanan s/o Govindan v. Union of India W P No. 12240 of 1994

1
no looking down upon the any person. Hence, no one should use such words while
addressing any person which may hurt his feelings.

In Arumugam Servai v. State of Tamil Nadu 17 the present case is against

the appellant where he has used certain words which are usd in derogatory sense to
insult someone. While deciding the appeal the Supreme Court has observed that the
words ‘pallan’, ‘pallapayal’, ‘parayan’ and ‘paraparaya’ are used with the intention to
insult the other person and accordingly highly objectionable and also an offence under
SC/ST Act. The court further held that today when we have entered in the modern
world, every person must try not to hurt the feeling of the other person on basis of his
caste, religion, tribe, anguage etc. The court stating the object of the SC/ST Act held
that the Act aims to prevent any kind of humiliation and harassment to the person
belonging to SC/ST community and also stated that in the era of democracy and
equality there should be no looking down upon the any person. Hence, no one sold
use such words while addressing any person which may hurt his feelings.

5.6.5 HONOUR KILLING AND THE PRINCIPLE OF ‘RAREST OF RARE

CASES’

“Law and order exist for the purpose of establishing justice and when they fail in this
purpose, they become the dangerously structured dams that block the flow of social
progress”- Martin Luther King

It was in the case of Macchi Singh v. State of Punjab 18 it was thecase in which the
Supreme Court laid down the guidelines for death penalty to the accused. The Court
observed that (a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and called for a death sentence? (b) Are
the circumstances of the crime such that there is no alternative but to impose death

17
(2011) 6 SCC 405 at 411
18
(1983) 3 SCC 470 at 489

1
sentence even after according maximum weightage to the mitigating circumstances
which speak in favour of the offender.” So, the guidelines issued by the Supreme
Court for awarding the death penalty may be as that only in the gravest cases of
extreme culpability, death penalty may be awarded, the circumstances of the
offenderalongwith the circumstances of the crime have to be taken into consideration;
when the sentence of the life imprisonment seem inadequate having regard to the
nature and circumstances of the crime, only then the death sentence may be awarded
and the aggravating and the mitigating circumstances need to be balanced.

Macchi Singh case19 It was observed by the court that “The extreme penalty of death
need not be inflicted except in gravest cases of extreme culpability. Before opting for
the death penalty, the circumstances of the 'offender' also require to be taken into
consideration alongwith the circumstances of the 'crime'. Life imprisonment is the
rule and death sentence are an exception. In other words, death sentence must be
imposed only when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the crime, and provided,
and only provided, the option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of the crime
and all the relevant circumstances. A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating circumstances has to
be accorded full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is exercised.”

There were certain guidelines which were laid down in this case are:

(I) Manner of Commission of Murder: When the murder is committed in an extremely

brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense
and extreme indignation of the community. For instance,

19
(1983) 3 SCC 470 at 489

2
(i) When the house of the victim is set aflame with the end in view to roast him alive in
the house.

(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to
bring about his or her death.

(iii)When the body of the victim is cut into pieces or his body is dismembered in a
fiendish manner.

(II) Motive for Commission of murder: When the murder is committed for a motive
which evince total depravity and meanness. For instance, when (a) a hired assassin
commits murder for the sake of money or reward (2) a cold-blooded murder is
committed with a deliberate design in order to inherit property or to gain control over
property of a ward or a person under the control of the murderer or vis-a-vis whom
the murderer is in a dominating position or in a position of trust. (c) a murder is
committed in the course for betrayal of the motherland.

(III)Anti Social or Socially abhorrent nature of the crime:

(a) When murder of a Scheduled Caste or minority community etc., is committed not
for personal reasons but in circumstances which arouse social wrath. For instance,
when such a crime is committed in order to terrorize such persons and frighten them
into fleeing from a place or in order to deprive them of, or make them with a view to
reverse past injustices and in order to restore the social balance.”

In Bhagwan Das v. State of (NCT) of Delhi20 the court held that the Honour crime is
commonly taking place in areas of Haryana, Western UP, and Rajasthan. The court
have already held in Lata Singh case, that there is no Honour in such killings and the
offence must fall in rrest of rare cases and the preparators of crimes must be awarded
death penalty to create a deterrent effect upon the people who are planning to commit
20
(2011) 6 SCC 396 at 405

2
such crime. “We have held in Lata Singh's case (supra) that there is nothing
`honourable' in `honour' killings, and they are nothing but barbaric and brutal
murders by bigoted, persons with feudal minds.

In our opinion honour killings, for whatever reason, come within the category of
rarest of rare cases deserving death punishment. It is time to stamp out these
barbaric, feudal practices which are a slur on our nation. This is necessary as a
deterrent for such outrageous, uncivilized behaviour. All persons who are planning to
perpetrate `honour' killings should know that the gallows await them.” The court laid
down that the honour killing satisfies ‘the rarest of the rare’ doctrine so as to attract
the death penalty for its perpetrators. In the above decision the Indian Supreme Court
held that in cases of ‘honour’ killing there must be a mandatory death sentence for the
perpetrators of such crimes, and the police and administrative officials who did not
prevent them must be immediately suspended. This decision raised a hue and cry
among the caste organizations, but has been widely acclaimed by the enlightened
section of Indian society.

Again, in State of UP v. Krishna Master21The court held that “There is no manner

of doubt that killing six persons and wiping almost the whole family on flimsy ground
of honour saving of the family would fall within the rarest of rare case evolved by this
Court and, therefore, the Trial Court was perfectly justified in imposing capital
punishment on the respondents. However, this Court also notices that the incident had
roughly taken place before 20 years, i.e., on August 10/11, 1991. Further, the High
Court had acquitted the respondents by judgment dated April 12, 2002. After April 12,
2002 till this date, nothing adverse against any of the respondents is reported to this
Court. To sentence the respondents to death after their acquittal in the year 2002
would not be justified on the facts and in the circumstances of the case. Therefore,
this Court is of the opinion that interest of justice would be served if each of the

21
(2010) 12 SCC 324 at 346

2
respondent is sentenced to RI for life and a fine of Rs.25,000/- each in default RI for
two years for commission of offence punishable under Section 302 read with Section
34 IPC. So, the court held that though the case fall within the category of rearest of
rarest cases and the Trial Court was right in giving death penalty to the accused but as
the High Court acquitted the accused in 2002 and till date nothing adverse came
against them. So, life imprisonment would serve the justice.

It is observed that, the Law Commission of India has proposed a Bill which aims to
criminalize the action of unlawful assemblies which interfere in the matrimonial
alliances of the young couple i.e. who perform inter-caste, inter-religion or marriage
against the customs of the society. The main aim of the Bill is to restrict the person to
assemble together in order to discuss the issue of young couple who have married or
about to marry by their choice or by inter-caste, inter-religion or marriage in same
gotra or village.

5.6.6 MARRYING IN SAME GOTRA IS A VALID MARRIAGE

Marriage in India is still governed by the personal law and there is no Uniform Civil
Code for marriage. But the marriages which are declared invalid by the Khap
Panchayat and the reason for such declaration is that they are not performed as per
the customs prevailing in the society. As per Hindu Law the marriage with in same
gotra and village are considered to valid. The Judiciary has also declared these
marriages as valid marriages as per law.

5.7 CRIMINAL JURISPRUDENCE OF HONOUR KILLING

Crime is generally committed not only against the individual but also against the
whole society and this reason why prosecution is conducted by the state in criminal
justice system. The main object of the criminal justice system is to punish the wrong
doer who has violated the basic rule that are to be followed in the society. Till now we
donot have any special law to deal with the cases of Honour Killing though there are

2
certain proposed bill by the National Commission for Women and also by Law
Commission in its 242nd report to make law to deal with the cases of Honour Killing
and also drafted the Bill for the same.

But these proposed Bills are passed the offence of Honour Killing is still covered
under the definition of murder under section 300 of Indian Penal Code. Section 300 of
Indian Penal Code, 1860 provides that,“Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or—(Secondly)—If it is done with the intention of causing
such bodily injury as the offender knows to be likely to cause the death of the person
to whom the harm is caused, or—(Thirdly)—If it is done with the intention of causing
bodily injury to any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or—(Fourthly) —If the person
committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.”22So, in the cases of Honour Killing where most of the killings are pre-
planned and intentional killings which directly fall under clause 4 of section 300 of
Indian Penal Code. So, as per section 300(4) the act is so immenentely dangerous that
in all the probability it will result in the death of the person. So, the offence
committed is murder and punishment for the same is provided in section 302 of Indian
Penal Code, 1860 where the punishment may vary from life imprisonment to death
sentence. The Honour Killing being a special kind of of offence committed under the
special circumstances and it being the heinous crime, in which the capital punishment
should be awarded to all the persons who are involved in the commission of crime.

The offence committed in the name of Honour may also be covered under section 354
of Indian Penal Code, 1860. As per Section 354 use of any kind of force or assault
against the women to outrage her modesty relates to sexual dignity of the women i.e

22
Section 300 of Indian Penal Code, 1860

2
her sexual sanctity. Every woman has a sense of presentation of her integrity and
dignity is inviolable. Therefore, if any physical act is done in violation of the sexual
integrity it will amount to outraging her modesty.So, in Honour Killing cases the
family members themselves use force against the women in order to protect the
Honour of the Family.

When the right to choose his or her own life partner is exercised by any person or if
any person refuses to perform arrange marriage or have extra-maritial sexual
relationship or ran away with anyone before the marriage are the activities which are
not acceptable by the society and are considered to be in violation of customary
practices prevailing in the society and these violators of the customary practices are
punished by the members of the society and the punishment which may be awarded to
them may extend to killing of such persons. So, as per penal laws all those persons
who have abetted such killing should also be liable Under Section 107 read along with
section 108 of Indian Penal Code, 1860 for abetting the murder and the punishment
will be the same as if they themselves have committed the offence of murder as
provided by section 109 of Indian Penal Code, 1860. Sometimes, it is also found that
the young couple who married according to their choice or who have violated the
customary practice of marriage prevailing in society are threatened by the family
members or members of the society to such extent that sometimes even the couple
commits suicide under the fear. This clearly shows that the suicide committed by the
couple is abetted suicide and is punishable under section 306 of Indian Penal Code,
1860. So, here the circumstances are created in such manner by the abettor that the
victim is left with no other option except to commit suicide. The abettor may be
punished with imprisonment which may extend upto 10 years along with fine. In
certain cases when these young couples are attacked to be killed by any person but the
couple surives even after being attacked may be liable for attempt to murder U/S 307
of IPC,1860 and may be punished with an imprisonment upto life imprisonment or
even death sentence may be awarded.

2
As per section 120A of IPC, 1860 which provides that two or more persons who
agrees to commit an offence may be punished U/S 120B. In first clause the
punishment for grave offences is provides and which may extend to an imprisonment
upto 2 years. The policy behind punishing the persons who agree to commit an
offence mentioned under IPC, 1860 is to keep a check upon the immediate power that
a person may derive due to the combination of minds of several individuals. So, all
the members of Khap Panchayat or the members of the family or any other person
who agrees to take an action against the couple who have married by their choice or
married in the same gotra or in the same village can also be held liable U/S 120B of
IPC, 1860.

5.8. JUDICIARY AND KHAP PANCAHAYAT

The Supreme Court have always tried to empower women by providing equal
status to women as is enjoyed by men. It has always tried to protect the rights of the
women in case they are violated. ‘Rule of law’ as applicable in the country which
means no man is above law and law is applicable equally to every person in the
country. So, to establish this rule, the Supreme Court from time to time has declared
these Khap Panchayats as non-constitutional bodies. Indian society is divided by the
caste system which is prevailing in the society and the existence of the caste system in
the society is a curse to society and is also harmful to integrity and unity of nation.

In Lata Singh v. State of U.P. and Others23, the Court held that “The caste system is
a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the
nation at a time when we have to be united to face the challenges before the nation
united. Hence, inter-caste marriages are in fact in the national interest as they will
result in destroying the caste system. However, disturbing news is coming from
several parts of the country that young men and women, who undergo inter-caste

23
(2006) 5 SCC 475 at 480

2
marriage, are threatened with violence, or violence is actually committed on them. In
our opinion, such acts of violence or threats or harassment are wholly illegal and
those who commit them must be severely punished”. On honour killing issue that, over
the several instances of harassment, threats and violence against young men and
women who marry outside their caste and held that, such acts or threats or harassment
are wholly illegal and those who commit them must be severely punished”. Court also
gives trace on that; Inter-caste marriages are in fact the national interest as they will
result in destroying the caste system.

In Arumugam Seervai v. State of Tamil Nadu 24, the present case is against the
appellant where he has used certain words which are usd in derogatory sense to insult
someone. While deciding the appeal the Supreme Court the Supreme Court has
observed that the words ‘pallan’, ‘pallapayal’, ‘parayan’ and ‘paraparaya’ are used
with the intention to insult the other person and accordingly highly objectionable and
also an offence under SC/ST Act. The court further held that today when we have
entered in the modern world, every person must try not to hurt the feeling of the other
person on basis of his caste, religion, tribe, anguage etc. The court stating the object
of the SC/ST Act held that the Act aims to prevent any kind of humiliation and
harassment to the person belonging to SC/ST community and also stated that in the
era of democracy and equality there should be no looking down upon the any person.
Hence, no one sold use such words while addressing any person which may hurt his
feelings.

While reiterating the judgment passed in Lata singh case where it was clearly
mentioned that the court has held that various news which are coming to our
knowledge where the young girls and boys are harassed, threatened if they marry
outside their caste. But these threats are wholly illegal and person who commits the
same must be severly punished. They further expressed their view that the caste

24
(2011) 6 SCC 405 at 411

2
system which is prevailing in the society is a curse to the nation and performance of
inter-caste and inter-religion marriage is a step forward to have a Uniform Civil Code.
In order to curb Honour Killing the court further issued directions to the state
authorities to see that people who perform inter-caste marriage should be protected as
inter-caste and inter-religion marriages are in national interest as they will help in
eradicating the caste system prevailing in the society and also for the establishment of
Uniform Civil Code.

UN in 1985 adopted Declartion of Basic Principle of Justice for Victims of Crime and
Abuse of power. Though the treaty is not binding but still it set up a minimum
standard for the treatment of crime and some as called it Magna Carta of International
victims’ movement. In India victims are still overlooked and there are no rights given
to them in the criminal proceedings. Sometimes victim is made to suffer injustice
silently or seek personal retribution by taking law in their hands. Victims are made to
face various hurdles during investigation and prosecution of crime. Victims are alien
to the criminal proceedings. But the greatest awareness is created by judiciary
regarding the rights of the victim and Judiciary has also take affirmative action for the
same by adopting the concept of restitution or by providing enhanced amount of
compensation. When we the status of victim in the criminal justice system in India,
the victim did not have the right to be represented by the lawyer of his choice, neither
he has the right to participate in the trial proceedings neither has the right to appeal
nor the word ‘victim’ had a mention in CrPC,1963. But after the recommendation
from Justice Malimath Committee on Reforms of Criminal Judicial System the word
‘victim’ was added to CrPC, 1963

As per section 2 (wa) of CrPC,1963 "victim" means a person who has suffered any
loss or injury caused by reason of the act or omission for which the accused person
has been charged and the expression "victim" includes his or her guardian or legal
heir;”. Earlier the victim being the main sufferer but in the criminal Judiial System
there was no concept to compensate the victim or the members of the victim family.

2
But now section 357A was added in CrPC, 1963 where the court has the authority to
pass an order against the accused to compensate victim and his family members for
the loss suffered by them. The victim is compensated irrespective of the final decision
of the case. There are certain funds which are raised by the central and state
government to compensate the victim in case the accused is not found.

5.9 RECOMMENDATION OF LAW COMMISSION AND NATIONAL

COMMISSION FOR WOMEN

There are number of incidents which are taking place in the name of Honour
throughout the country. Though these incidents are covered under the penal law of the
country but still we don’t have special law to deal with these incidents. But after
considering the happening of the incidents there are certain Bills which are specially
drafted to punish the person who are involved in commission, abetting or attempting
to commit such offence and also to safeguard the young couple who perform
marriages against the customs and tradition of the family or society. The bill titled
“Prevention of Crimes in the Name of ‘Honour’ & Traditional Bill, 2010” was drafted
by the National Commission for Women in 2010. The main object of the proposed
Bill was to deal with the incidents of killing in the name of Honour of family or the
society which are taking place in many parts of the country especially in North India
which includes Western Uttar Pradesh, Rajasthan, Punjab, Rajasthan and Haryana.
The crime specially committed in the name of Honour is one of the most violent and
abusive acts committed against the victim by their own family member under the
instigation of the Khap Panchayat. Khap Panchayat, being against the matriomonial
alliances of the young couple who have married by their choice, passes an order
where they punish the young couple. So, to create a deterent effect upon the other
young couple who may follow the same. These unconstitutional bodies justfy their
action on the ground of violation of custom and tradition followed in the society. But
the commission of crime in the name of Honour not only kills the person but is also

2
violative of the fundamental rights provided by the Constitution of India, which
includes right to life and liberty given under the Constitution of India.

So, the main aim of the Proposed Bill is to prevent the happening of such incidents in
the name of Honour and also to protect the violation of fundamental rights of the
individual.

The Bill drafted by National Commission for women drafting the proposed bill failed
to deal with unlawful assemblies specially gathering to discuss about the matrimonial
alliances which are taking place against the customs and tradition of the society and
also about their influence upon the society. So, the law commissionwhile submitting
its 242nd report came up with the proposed Bill titled, the “Prohibition of Unlawful
Assembly (Interference with the Freedom of Matrimonial Alliance) Bill, 2011” with
major focus on punishing the unlawful assemblies which specially interfere in the
matrimonial alliances of the yung couple i.e. who perform inter-caste, inter-religion
marriage or marriage in the same gotra or village and also to restrict such unlawful
assemblies to gather at a place.

The proposed Bill aims to criminalize the action of unlawful assemblies which
interfere in the matrimonial alliances of the young couple i.e. who perform inter-caste,
inter-religion or marriage against the customs of the society. The main aim of the Bill
is to restrict the person to assemble together in order to discuss the issue of young
couple who have married or about to marry by their choice or by inter-caste, inter-
religion or marriage in same gotra or village. So, the proposed Bill aims to punish the
member of this Unlawful Assembly and also any person who act upon the direction
issued by the unlawful Assembly. If the proposed Bill is passed it will reduce the role
of Khap Panchayat and its influence upon the society. Khap Panchayat passes a
decision against the young couple. The proposed Bill also provide punishment for
assembling together for the same purpose. Now the Khap Panchayat can only be
punished under section 120B for criminal conspiracy and also under section 107 read

3
along with section 108 for abetment under Indian Penal Code, 1860. But there is no
special legislature to punish the member of the unlawful assembly which are against
the matrimonial alliances which are not permitted by the custom and tradition
prevailing in the society. So, the Bill aims at preventing hatred or spreading of
violence by these unlawful assemblies. So, the Bill aims to punish the member of
unlawful assembly along with the punishment which is provided in Indian Penal
Code.

5.10 CASE ANALYSIS: -SHAKTI VAHINI v. UNION OF INDIA AND

OTHERS (Decided on March 27, 2018)

The Judgment begins with laying the tenets of liberty and the Chief Justice of India,
Justice Deepak Mishra quoted the French philosopher to explain the concept of
liberty. He observed that “The Assertion of choice is an in segregable facet of liberty
and dignity. That is why the French philosopher and thinker, Simone Weil, has said: -

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

When the ability to choose is crushed in the name of class honour and the person’s
physical frame is treated with absolute indignity, a chilling effect dominates over the
brains and bones of the society at large. The question that poignantly emanates for
consideration is whether the elder of the family or clan can ever be allowed to
proclaim a verdict guided by some notion of passion and eliminate the life of the
young who have exercised their choice to get married against the wishes of their
elders or contrary to the customary practice of the clan. The answer has to be an
emphatic “No”. It is because the sea of liberty and the ingrained sense of dignity do
not countenance such treatment inasmuch as the pattern of behaviour is based on
some extra-constitutional perception. Class honour, howsoever perceived, cannot
smother the choice of an individual which he or she is entitled to enjoy under our
compassionate Constitution. And this right of enjoyment of liberty deserves to be
continually and zealously guarded so that it can thrive with strength and flourish with

3
resplendence. It is also necessary to state here that the old order has to give way to
the new. Feudal perception has to melt into oblivion paving the smooth path for
liberty. That is how the statement of Joseph J. Ellis becomes relevant. He has
propounded: -

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

So, according to them the right to choose is part and parcel of the liberty of the
individual and such right cannot be taken away in the name of honour of the family or
society by the members of family nor of the society. Nor these people are allowed to
take away the life of the young couple in case of them marrying by their choice. They
also stated that the old custom should also give way to new concept of liberty.

While observing the nature of offence the court clearly held that it is not only a single
crime which is committed in the name of Honour rather it is one of the offences and
has considered Honour killing as a species and Honour crime as a genus. So, the apex
court held that

“That honour killing is not the singular type of offence associated with the action
taken and verdict pronounced by the Khap Panchayats. It is a grave one but not the
alone one. It is a part of honour crime. It has to be clearly understood that honour
crime is the genus and honour killing is the species, although a dangerous facet of it.
However, it can be stated without any fear of contradiction that 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.”

The Supreme Court while deciding upon the authority of the Khap Panchayat held
that when two major persons who chooses to marry each other, the consent of the

3
family, society is not required and Khap Panchayat also doesn’t have an authority to
determine the validity of their marriage and for doing the same they cannot take law
in their hands.

“What we have stated hereinabove, to explicate, is 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. It is so since a polity governed by ‘Rule of Law’
only accepts determination of rights and violation thereof by the formal institutions
set up for dealing with such situations. It has to be constantly borne in mind that rule
of law as a concept is meant to have order in a society. It respects human rights.
Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create
a dent in exercise of the said right.”

The court also observed that every person who is major has the Right to choose life
partner and this right is also recognised by the Constitution and once it is recognised
by the Constitution it needs to be protected from any kind of violation and the same
cannot be taken away in the name of Honour. “Honour killing guillotines individual
liberty, freedom of choice and one’s own perception of choice. It has to be sublimely
borne in mind that when two adults consensually choose each other as life partners, it
is a manifestation of their choice which is recognized under Articles 19 and 21 of the
Constitution. Such a right has the sanction of the constitutional law and once that is
recognized, the said right needs to be protected and it cannot succumb to the
conception of class honour or group thinking which is conceived of on some notion
that remotely does not have any legitimacy.”

While deciding upon the constitutionality of the Khap Panchayat the court held that
Khap Panchayat being unconstitutional body and does not have a legal status should

3
 not assume them with the power of law enforcing agency. It observed that “The 'Khap
Panchayats' or such assembly should not take the law into their hands and further
cannot assume the character of the law implementing agency, for that authority has
not been conferred upon them under any law. Law has to be allowed to sustain by the
law enforcement agencies.”

The Bench also laid down certain preventive measures which need to be taken by the
state authorities needs to take in order to protect the couple and also in curbing the
crime. They are:

(a) The State Governments should forthwith identify Districts, Sub-Divisions and/or
Villages where instances of honour killing or assembly 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 States shall issue
directives/advisories to the Superintendent of Police of the concerned Districts
for ensuring that the Officer In charge of the Police Stations of the identified
areas are extra cautious if any instance of inter-caste or inter- religious
marriage within their jurisdiction comes to their notice.

(c) If information about any proposed gathering of a Khap Panchayat comes to the
knowledge of any police officer or any officer of the District Administration, he
shall forthwith inform his immediate superior officer and also simultaneously
intimate the jurisdictional Deputy Superintendent of Police and Superintendent
of Police.

(d) On receiving such information, the Deputy Superintendent of Police (or such
senior police officer as identified by the State Governments with respect to the
area/district) shall immediately interact with the members of the Khap
Panchayat and impress upon them that convening of such meeting/gathering is
not permissible in law and to eschew from going ahead with such a meeting.

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 Additionally, he should issue appropriate directions to the Officer In charge of
the jurisdictional Police Station to be vigilant and, if necessary, to deploy
adequate police force for prevention of assembly of the proposed gathering.

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

(f) If the Deputy Superintendent of Police, after interaction with the members of the
Khap Panchayat, has reason to believe that the gathering cannot be prevented
and/or is likely to cause harm to the couple or members of their family, he shall
forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate
of the District/ Competent Authority of the concerned area for issuing orders to
take preventive steps under the Cr.P.C., including by invoking prohibitory orders
under Section 144 Cr.P.C. and also by causing arrest of the participants in the
assembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must take initiative and work
in coordination with the State Governments for sensitising the law enforcement
agencies and by involving all the stake holders to identify the measures for
prevention of such violence and to implement the constitutional goal of social
justice and the rule of law.

(h) There should be an institutional machinery with the necessary coordination of

all the stakeholders. The different State Governments and the Centre ought to

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 work on sensitization of the law enforcement agencies to mandate social
initiatives and awareness to curb such violence.”

Along with the preventive measures the Bench also issued certain remedial
measures which are: -

(a) Despite the preventive measures taken by the State Police, if it comes to the
notice of the local police that the Khap Panchayat has taken place and it has
passed any diktat to take action against a couple/family of an inter-caste or
inter-religious marriage (or any other marriage which does not meet their
acceptance), the jurisdictional police official shall cause to immediately lodge an
F.I.R. under the appropriate 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 simultaneously given to the

Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall
ensure that effective investigation of the crime is done and taken to its logical
end with promptitude.

(c) Additionally, immediate steps should be taken to provide security to the

couple/family and, if necessary, to remove them to a safe house within the same
district or elsewhere keeping in mind their safety and threat perception. The
State Government may consider of establishing a safe house at each District
Headquarter for that purpose. Such safe houses can cater to accommodate

(d) (i) young bachelor-bachelorette couples whose relationship is being opposed by

their families /local community/Khaps and (ii) young married couples (of an
inter-caste or inter-religious or any other marriage being opposed by their
families/local community/Khaps). Such safe houses may be placed under the
supervision of the jurisdictional District Magistrate and Superintendent of
Police.

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(e) The District Magistrate/Superintendent of Police must deal with the complaint
regarding threat administered to such couple/family with utmost sensitivity. It
should be first ascertained whether the bachelor-bachelorette are capable
adults. Thereafter, if necessary, they may be provided logistical support for
solemnising their marriage and/or for being duly registered under police
protection, if they so desire. After the marriage, if the couple so desire, they can
be provided accommodation on payment of nominal charges in the safe house
initially for a period of one month to be extended on monthly basis but not
exceeding one year in aggregate, depending on their threat assessment on case
to case basis.

(f) The initial inquiry regarding the complaint received from the couple (bachelor-
bachelorette or a young married couple) or upon receiving information from an
independent source that the relationship/marriage of such couple is opposed by
their family members/local community/Khaps shall be entrusted by the District
Magistrate/ Superintendent of Police to an officer of the rank of Additional
Superintendent of Police. He shall conduct a preliminary inquiry and ascertain
the authenticity, nature and gravity of threat perception. On being satisfied as to
the authenticity of such threats, he shall immediately submit a report to the
Superintendent of Police in not later than one week.

(g) The District Superintendent of Police, upon receipt of such report, shall direct
the Deputy Superintendent of Police in charge of the concerned sub-division to
cause to register an F.I.R. against the persons threatening the couple(s) and, if
necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy
Superintendent of Police shall personally supervise the progress of investigation
and ensure that the same is completed and taken to its logical end with
promptitude. In the course of investigation, the concerned persons shall be
booked without any exception including the members who have participated in
the assembly. If the involvement of the members of Khap Panchayat comes to the

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 fore, they shall also be charged for the offence of conspiracy or abetment, as the
case may be.”

While issuing the punitive directions the Bench clearly held that in case if the officials
fails to perform their duty, a departmental proceeding will take place against him. In
case they have a prior notice and they did not try to prevent the happening of incident,
disciplinary action will take place against them. There should be some special cells
which must be formed and the helpline which must be working 24*7 to help the
couple who are threatened and also to have some special fast track courts to decide he
cases of Honour Killing. The court observed that,

(a) Any failure by either the police or district officer/officials to

comply with the aforesaid directions shall be considered as an act of
deliberate negligence and/or misconduct for which departmental action must
be taken under the service rules. The departmental action shall be initiated
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 the concerned officials if it is found
that (i)such official(s) did not prevent the incident, despite having prior
knowledge of it, or (ii) where the incident had already occurred, such
official(s) did not promptly apprehend and institute criminal proceedings
against the culprits.

(c) The State Governments shall create Special Cells in every District comprising
of the Superintendent of Police, the District Social Welfare Officer and
District Adi-Dravidar Welfare Officer to receive petitions/complaints of
harassment of and threat to couples of inter-caste marriage.

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

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

So, finally what is concluded from the whole judgment is that the tenets of law
and morality have to be in tandem in order for preservation of the societal fabric. The
judicial pillar of our democracy has an inherent responsibility for initiating social
consciousness and to eliminate obsolete customs and traditions if they contravene the
precepts of contemporary law.

This landmark judgement given by the Apex Court seeks to achieve the same by
attempting to change the orthodox ideological milieu of the society resulting in the
evolution of a progressive and open-minded society laid down on the foundation of
intellectual liberty and social harmony. However, any law without its proper
implementation is like a ‘toothless tiger’ and therefore it has to be ensured that
efficient and effective implementation of the court’s directives are done and the
orthodox mentality of the society should be shunned away to bring the tenets of
morality in consonance with the cotemporary legal framework.

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