Shakti Vahini vs. Union of India A.I.R. 2018 SC 1601

Adarsh Kashyap
Author:

Introduction

Shakti Vahini v. Union of India is a landmark case, the verdict of the Apex Court of India in the year 2018. As a result, the State governments and the police department have been directed to make a strong mechanism in society to eliminate the crime of the Honour Killing. Further, the Court laid down some remedies and preventive measures for the state governments and the police department to build a strong system.

Shakti Vahini is an organization that was asked to research Honour Killing in the states, i.e., “Haryana, Punjab and Western Uttar Pradesh” by the National Commission for Women on 22.12.2009. It was affirmed there was a series of honor killings in these states of India. During the research, it was discovered that this trend of crimes causes an increase in anxiety among the youth who fall in love against the rules and wills of the community's core group and who, out of fear, refuse to marry the person they chose as their partner.

Background

“Honour Killing” is a serious problem that has spread across the country. The Panchayats that commit this crime believe it is their responsibility to punish those who violate the Panchayat's rituals or regulations. Khap Panchayat is another name for this Panchayat. The female members of this civilization are completely reliant on the male members. The way a woman conducts herself in society affects her reputation in the community. Both the woman and the man are unable to choose their life partner without the consent of the family's elders. If a woman selects a life partner outside of her community or caste, she is deemed disgraced in society. She will suffer the consequences of her conduct, which could include death or other community sanctions. This does not mean that only men are victims of this crime; women are also subjected to violent and inhumane treatment by community members for defying the community's wishes. The khap panchayat held meetings to administer punishments for acts of dishonor committed by a woman and a man in society. This system exhibits patriarchal behavior, with wives, sisters, and daughters being considered second-class citizens to male family members.

Furthermore, the female member has no right to express herself in society. They should move by the male members' wishes and physical frames. In short, it is noticed that the female member of the society has no identity and that her only responsibility is to care for her children and household while working according to the wishes of the male members.

Other than prohibited marriages or relationships in society, there are several other elements linked to honor killings. The following are some of them: I losing one's virginity before marrying; (ii) premarital pregnancy; (iii) infidelity; (iv) abandoning one's family without consent; (v) requesting a divorce and claiming custody of children after divorce; (vi) raising public scandal or gossip; (vii) becoming a victim of rape. All of the factors above could lead to social unrest or criminality. As a result, "The sole governing component of honor crime is the concept of status amongst significant members of the community and their dominance,” as we can cite.

Facts of the case

The writ petition has been filed under Article 32 of the Constitution of India seeking directions to the respondents- the state and the central governments to take preventive steps to combat honor crimes, to submit a National & State Plan of action to curb crimes of the said nature and further to direct the State Governments to constitute special cells in each district which can be approached by the couples for their safety and well-being. Also, prayers have been made to issue a writ of mandamus to the State Governments to launch prosecutions in each case of Honour killing and take appropriate measures so that all such honor crimes and embedded evil in the mindset of certain members of the society are dealt with appropriately.

Issues of the case

1. Whether an individual has a right to choose a life partner of his/her choice?

2. Whether khap panchayats undertook honor killings are legal?

The argument of the parties

Petitioner’s contention

A) The actions which are found to be linked with honor-based crimes are:

i) Loss of virginity outside marriage ii) Premarital pregnancy iii) Infidelity iv) Having unapproved relationships v) Refusing an arranged marriage vi) Asking for divorce vii) Demanding custody of children after divorce viii) Leaving the marital home without permission ix) Causing scandal or gossip in the community x) Falling victim to rape

B) Murder in daylight and brutal treatment like beating, shaving of heads, or putting the victims on fire in full public gaze of the members of the society reflect that the victims are treated as inanimate objects oblivious of the law of the land and unconcerned with the feelings of the victim who face such cruelty and eventually succumb to them.

C) The parallel law enforcement agencies consisting of leading men of a group having the same lineage or caste comprise themselves into an assembly and deal with the problems that affect the group in the manner they want to and nurture the feeling that their duty is sanctified and their action of punishing the unfortunate victims is inviolable. They are known by the names Panchayats or Khap Panchayats and try to adopt the chosen course of ‘more vigilantism’ and enforce their diktats by assuming to themselves the role of social or community guardians which have the power to punish for the crimes and direct for social boycott or killing by a mob. For them, it is the projected honor that rules supreme, and the lives of others become subservient to their desires and decisions.

D) These extra-constitutional Bodies which engage in feudalistic activities have no compunction about committing such crimes, which are offenses under the Indian Penal Code.

E) Article 21, which provides for the protection of life and personal liberty and guard basic human rights and equality of status, has not been taken care of by these bodies.

Respondent’s Contention

A) Honour Killings are treated as murder as defined under Section 300 of the I.P.C. and punishable under Section 302 of the I.P.C. As the police and public order are state subjects under the constitution, it is primarily the responsibility of the states to deal with honor killings

B) Central Government is engaging various States and Union Territories for considering a proposal to either amend the I.P.C. or enact separate legislation to address this menace.

C) Since the 242nd law commission report falls under list three, i.e., Concurrent list of the seventh schedule to the Constitution of India, consultation with the governments of the states and U.T.s is a sine qua non for taking a policy decision in this regard.

D) Although some states have formed an action plan in the name in pursuance of the directions issued by this Court, yet they have failed to implement the same in letter and spirit effectively.

E) And so effective guidelines to the police and law enforcement agencies to curb the menace of honor killing need to be formulated and implemented.

Important Provision

What is khap panchayats?

A Khap is a community group that represents a clan or a collection of clans that are linked. They are primarily found in northern India, mainly among the Jat people and Western Uttar Pradesh and Haryana. However, the word has previously been applied to other ethnicities. For example, a Khap Panchayat is a group of Khap elders, while a Sarv Khap is a collection of Khap Panchayats. Khaps are unaffiliated with publicly elected government bodies and are instead focused on the business of the Khap they represent. Therefore, it is not associated with Panchayats, which are democratically elected local assemblies.

The legality of khap panchayats according to the constitution

The phrase khap panchayat is not mentioned in the constitution, as previously stated. It is just a caste-based customary body established by a group of people who believe that old norms and traditions give them the right to safeguard culture and society. It has no legal standing but serves as a de facto court. Under the Panchayati Raj Adhiniyam, these entities are not elected. If any cognizable offense has been committed, every conduct of Khap panchayats instead of any legislation is triable in any judicial court; police should take cognizance. Marriage is governed by personal law. According to the Hindu Marriage Act of 1955, a Hindu, Budh Sikh, or Jain, can marry a person who has converted to the faith mentioned above and register as a Hindu, Budh Sikh, or Jain. Marriage is a religious sacrament, not a civil contract, according to this act. Marriage under the 1954 Special Marriage Act allows anyone, regardless of religion, to marry another individual. Marriage is a civil contract under this act, and no religious ceremony is required to finalize the marriage.

The right to marry is a fundamental right.

No one has the authority to punish two consenting adults who agree to marry each other. Article 19 and Article 21 of the constitution recognize this. Marriage between two adults does not require the consent of family, community, or clan. According to Article 21 of the Indian Constitution, the right to marriage is an element of the right to life. As a result, no law or constitution states that intercaste, interreligious, or inter-Zagora marriages are outlawed or illegal.

International perspective:

Within the scope of the right to start a family, the right to marry is also specified in the Human Rights Charter. Thus, the right to marry is a universal right that everyone has access to. Furthermore, the Universal Declaration of Human Rights (UDHR) encourages member countries to pursue various human, civil, economic, and social rights, claiming that these rights are part of the "basis of world freedom, justice, and peace."

Article 16 of the Universal Declaration of Human Rights guarantees the freedom to freely choose a spouse and marry only with their free and informed consent.

The right of men and women of marriageable age to marry and start a family shall be recognized, and no marriage must be entered into without the free and full consent of the intending spouses, according to Article 23 of the International Covenant on Civil and Political Rights of 1966.

Marriage must be entered into with the voluntary permission of the intended spouses, according to Article 10 of the International Covenant of Economic, Social, and Cultural Rights of 1966.

According to the European Convention on Human Rights (ECHR), all men and women who have attained the age of legal marriage have the right to marry and raise a family.

Following national regulations governing the exercise of this right, men and women of marriageable age have the right to marry and start a family, according to Article 12.

The Supreme Court held:

The Supreme Court confirmed that the right to choose one's life partner is a basic right and that marriage between two adults does not require the agreement of one's family, community, or clan. "When two adults consensually choose each other as life partners, it is an expression of their choice recognized by Articles 19 and 21 of the Constitution," the Supreme Court said. The Supreme Court has issued preventative measures. Districts, Sub-Divisions, and Villages where honor killings or Khap Panchayat assemblies have been reported in the recent past, e.g., in the last five years, should be identified immediately by state governments. If the police officer receives any information regarding the meeting, he should contact a superior officer, such as the Deputy Superintendent of Police. The D.S.P. would work with the khap panchayat to avoid the meeting. If the khap panchayat still holds the meeting, the D.S.P. will remain there and ensure that no negative actions are taken against the spouses and their families. Suppose the Deputy Superintendent of Police has reason to believe that the gathering cannot be prevented and is likely to cause harm to the couple or members of their family after speaking with members of the Khap Panchayat. In that case, he shall immediately submit a proposal to the DM/SDM / Competent Authority of the concerned area for issuing orders to take preventive measures under the CrPC, including by arresting the couple or members of their family.

Remedial measures issued by the Supreme Court

The Supreme Court's S.H.O., S.P., and District Magistrate must issue remedial measures to determine whether or not married couples are safe. They would be supplied with police protection and safe places for this purpose. If the SHO/SP/DM receives the information, one of them will file an F.I.R. under the provisions of the I.P.C., specifically sections 141,143, and 503 read with 506 of the IPC.18

Punitive measures issued by the Supreme Court

Failure to comply with the orders above by either the police or district officer/officials will be regarded as an act of willful carelessness and misconduct for which departmental action will be taken under the service regulations. The authority of the first instance shall commence and carry out the departmental action to its logical conclusion, preferably within six months. These Special Cells will establish a 24-hour helpline to accept and record such complaints and give essential aid, counseling, and protection to the couple, with a final report, filed to the magistrate under section 173 of the CrPC.

CASE COMMENT

Even after the spread of education and the laws guaranteeing equal status for both men and women, women are still considered inferior. The society also treats mothers, daughters, and sisters, whether subservient or self-sacrificing. Choosing a life partner is not a crime, and it is unfair to punish someone in the name of caste, community, gothra, and a few other criteria. The Court, in this case, has rightly condemned the whole "Honor Killings" scenario, which violates the fundamental right enshrined in Article 21 of the Constitution of India and is of paramount importance to the laws of our country. It is pitiful and unbearable to pursue any such method of retribution under the veil of one's family name and pride.

Second, neither Panchayat nor the family members have the power to punish couples who are regarded as sinners and suffer irreparably at the hands of these communities. Society needs to recognize that autonomy is individualistic. The only way to prosecute someone is by following judicial processes. In the eyes of the law, marriage is not a crime even though the two people belong to a different caste, culture, or religion. The direction is given by the Court to eradicate the practice of "Honour Killing" is an important move that can eliminate or minimize the serious phenomenon of such incidents.

Shakti Vahini v. Union of India is a case in which the Court ordered the state governments and the police force to set up a comprehensive system to help society eradicate the crime of Honour Killing. In addition, the Court has developed some preventive, corrective, and remedial measures for the states and the police to create a strong framework. This case is a blatant example representing the triumph of dynamic and free-thinking over the stagnating and irrational ideologies that dominate society. The Court held that the statement of preference was a segregable facet of independence and dignity. The choice of a person is an inextricable part of dignity to undermine the dignity of choice. The definition of freedom must be weighted down and tested on the touchstone of constitutional sensitivity, security, and principles that it stands for. It is the responsibility of the constitutional courts, as a sentinel of Qui Vive, to cherish the right to liberty of a person as the dignified life of an individual has an inseparable connection with liberty. Suppose freedom cannot be preserved, subject to legally acceptable provisions of the law. In that case, a person's life becomes equivalent to that of a living dead who must suffer violence and torture without complaint and accept the intrusion of thoughts and opinions without a voice of dissent or debate or record a disagreement.

If the right to express one's preference is inhibited, integrity cannot be regarded in its sanctified completeness. When two adults marry out of their own will, they choose their course, consummate their relationship, have the right to do so, and any infringement of that right is a constitutional breach. Such groups or assemblies, acting by a majority in the name of the class or the sacred honor of the clan, cannot assert the force, the authority, and the final say to enforce any penalty. The elders of the family should never be permitted to proclaim a verdict driven by a certain notion of passion and eradicate the life of young people who have exercised their option to marry against the wishes of their elders or contrary to the traditional practice of their clan. The constitution and the laws of their country do not recognize such an act, and the entire operation is unlawful and punishable as an offense under criminal law.

The Court referred to the 242nd report submitted by the Indian Law Commission. It claimed that the words "honor killing" and "honor crimes" are used loosely as convenient phrases and as more of a catchphrase than an apt or accurate term to characterize the instances of violence and abuse of young couples expected to marry or marry against the wishes of the community or family members. There are claims that extreme action, including mental torture, infliction or threat of serious bodily harm, improper detention, constant abuse, and sometimes even murder, includes close relationships or third parties.

Honor killings are condemned as a significant violation of human rights and are also debated by international organizations. For example, the Council of Europe Convention on the Prevention and Regulation of Violence against Women and Domestic Violence deals with the topic referred to in Article 21, which deals with insufficient justifications for crimes, including crimes committed in the name of honor.

The Law Commission had drawn up a bill stating that the principle underpinning the provisions of the bill is that there must be a threshold bar against a community or assembly to condemn the conduct of young persons of a marriageable age who marry based on their preference, on the ground that they belong to the same gotra or belong to different castes and communities. These communities, also referred to as Panchayat or caste elders, have no right to interfere with the life and freedom of those young couples whose marriages are allowed by law and cannot establish a risky and hostile situation in the village/locality concerned. The same assembly is made for an improper reason, i.e., objecting to marriage that is otherwise legal and within the scope of the law. Their conduct should be regarded as an offense since it endangers the lives and freedoms of the individual concerned. Such assemblies shall have no respect for life and liberty. Such actions shall be duly dealt with by criminal law without recourse to any prosecution under general criminal law for the commission of offenses, including abdication and conspiracy.

CONCLUSION:

To respect someone is to love, protect, and defend them.

Murder is a dishonorable act. India is a country with a diverse and rich cultural heritage. India's people respect and adhere to a wide range of customs, traditions, and civilizations. However, over the years, people have modified and even abandoned particular customs to become more convenient. The most prominent example is Sati, which is considered criminal by law. However, because people in each community have distinct mindsets, some people continue to practice certain heinous habits. The current case, Shakti Vahini V. U.O.I., involves a barbaric ritual in which a couple in love is slain in the name of honor killing because their family/local/community refused to approve for whatever reason, primarily based on caste or religion. In the guise of honor killing, it implies delving into the evil part of our culture. You can kill a 'he' or a 'her,' but you will never be able to kill their love. The Supreme Court declared in Shakti Vahini V. U.O.I. that asserting one's right to choose is an inseparable aspect of liberty and dignity. When one's power to choose is stifled in the name of class honor, and one's physical frame is treated with utter contempt, a chilling influence descends upon society's minds and bones. The 'Khap Panchayats' or any other such assembly has no right to take the law into their own hands, nor can they presume the character of the law-enforcing authority, as such power has not been granted to them by any legislation. The author personally admires the current case's decision and is convinced that it will significantly impact our society.