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REPORTABLE

IN THE SUPREME COURT OF INDIA

 CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 231 OF 2010

Shakti Vahini …Petitioner(s)

  Versus

Union of India and others …Respondent(s)

J U D G M E N T

Dipak Misra, CJI

Assertion of choice is an insegregable 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 elders

of  the  family  or  clan  can  ever  be  allowed  to  proclaim  a

verdict guided by some notion of passion and eliminate the

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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

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.”

2. Presently, to the factual score. The instant Writ

Petition has been preferred under Article 32 of the

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Constitution of India seeking directions to the respondents-

State Governments and the Central Government to take

preventive steps to combat honour crimes, to submit a

National  Plan  of  Action  and  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. That apart, 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 such honour crimes and

embedded evil in the mindset of certain members of the

society are dealt with iron hands.

3. The petitioner-organization was authorized for

conducting Research Study on “Honour Killings in Haryana

and Western Uttar Pradesh” by order dated 22.12.2009

passed by the National Commission for Women. It is averred

that  there  has  been  a  spate  of  such  honour  killings  in

Haryana, Punjab and Western Uttar Pradesh and the said

trend is on the increase and such killings have sent a

chilling  sense  of  fear  amongst  young  people  who  intend  to

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get married but do not enter into wedlock out of fear.  The

social pressure and the consequent inhuman treatment by

the core groups who arrogate to themselves the position of

law makers and impose punishments which are extremely

cruel instill immense fear that compels the victims to

commit suicide or to suffer irreparably at the hands of these

groups.   The  egoism  in  such  groups  getting  support  from

similarly driven forces results in their becoming law unto

themselves. The violation of human rights and destruction

of  fundamental  rights  take  place  in  the  name  of  class

honour or group right or perverse individual perception of

honour. Such individual or individuals consider their

behaviour  as  justified  leaning  on  the  theory  of  socially

sanctioned norms and the legitimacy of their functioning in

the  guise  of  ethicality  of  the  community  which  results  in

vigilantism. The assembly or the collective defines honour

from its own perception and describes the same in such

astute cleverness so that its actions, as it asserts, have the

normative justification.

4. It is contended that the existence of a woman in such

an atmosphere is entirely dependent on the male view of the

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reputation  of  the  family,  the  community  and  the  milieu.

Sometimes, it is centered on inherited local ethos which is

rationally not discernible.  The action of  a woman or a man

in choosing a life partner according to her or his own choice

beyond the community norms is regarded as dishonour

which, in the ultimate eventuate, innocently invites death at

the cruel hands of the community prescription. The

reputation of  a woman is weighed according to the manner

in which she conducts herself,  and the family to which the

girl or the woman belongs is put to pressure as a

consequence of which the members of the family, on certain

occasions, become silent spectators to the treatment meted

out or sometimes become active participants forming a part

of the group either due to determined behaviour or

unwanted sense of redemption of family pride.

5. The concept of honour with which we are concerned

has many facets. Sometimes, a young man can become the

victim of honour killing or receive violent treatment at the

hands of the family members of the girl when he has fallen

in love or has entered into marriage. The collective behaves

like a patriarchal monarch which treats the wives, sisters

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and daughters subordinate, even servile or self-sacrificing,

persons moving in physical frame having no individual

autonomy, desire and identity. The concept of status is

accentuated by the male members of the community and a

sense of masculine dominance becomes the sole governing

factor of perceptive honour.

6.  It is set forth in the petition that the actions which are

found to be linked with honour based crimes are- (i) loss of

virginity outside marriage; (ii) pre-marital 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 family or marital home without permission; (ix) causing

scandal or gossip in the community, and (x) falling victim to

rape. Expanding the aforesaid aspect, it is stated that some

of the facets relate to inappropriate relationship by a woman

some of which lead to refusal of arranged marriages. Certain

instances have been cited with regard to honour crimes and

how the said crimes reflect the gruesome phenomena of

such incidents. Murder in day light and brutal treatment in

full public gaze of the members of the society reflect that the

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victims are treated as inanimate objects totally oblivious of

the law of the land and absolutely unconcerned with the

feelings of the victims who face such cruelty and eventually

succumb  to  them.   The  expression  of  intention  by  the

couples to get married even if they are adults is sans sense

to the members who constitute the assembly, for according

to them, it  is the projected honour that rules supreme and

the lives of others become subservient to their desires and

decisions.  Instances that have been depicted in the Writ

Petition  pertain  to  beating  of  people,  shaving  of  heads  and

sometimes putting the victims on fire as if they are “flies to

the wanton boys”.  Various news items have been referred to

express  anguish  with  regard  to  the  abominable  and

horrifying incidents that the human eyes cannot see and

sensitive minds can never countenance.

7. It is contended in the petition that the parallel law

enforcement agency consists of leading men of a group

having the same lineage or caste which quite often meets to

deal with the problems that affect the group. They call

themselves Panchayats which have the power to punish for

the crimes and direct for social boycott or killing by a mob.

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Sometimes these Panchayats have the nomenclature of

Khap Panchayats which  have  cultivated  and  nurtured  the

feeling amongst themselves that their duty is sanctified and

their action of punishing the hapless victims is inviolable.

The meetings of the collective and the discussions in the

congregation reflect the level of passion at the highest. It is

set forth that the extra-constitutional bodies which engage

in feudalistic activities have no compunction to commit

such crimes which are offences under the Indian Penal

Code. It is because their violent acts have not been taken

cognizance  of  by  the  police  and  their  functioning  is  not

seriously questioned by the administration. The

constitutional provisions are shown scant regard and

human dignity is treated at the lowest melting point by this

collective.  Article 21 which provides for protection of life

and liberty and guards basic human rights and equality of

status has been unceremoniously shown the exit by the

actions of these Panchayats or the groups who, without the

slightest pangs of conscience, subscribe to honour killing.

In this backdrop, prayers have been made as has been

stated hereinbefore.

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8. A counter affidavit  has been filed on the behalf  of  the

Union  of  India,  Ministry  of  Home  Affairs  and  Ministry  of

Women and Child Development, respondent Nos. 1, 2 and 3

respectively. It has been contended that honour killings are

treated as murder as defined under Section 300 of the IPC

and punishable under Section 302 of the IPC. As the police

and public order are State subjects under the Constitution,

it is primarily the responsibility of the States to deal with

honour killings.  It is put forth that the Central Government

is engaging various States and Union Territories for

considering  a  proposal  to  either  amend  the  IPC  or  enact  a

separate legislation to address the menace of honour killing

and related issues.

9. Pursuant to the order of this Court dated 9th

September, 2013, the Union of India has filed another

affidavit stating, inter alia, that in order to tackle the issue

of  'honour  killings',  a  Bill  titled  ‘The  Prohibition  of

Interference with the Freedom of Matrimonial Alliances Bill’

has  been  recommended  by  the  Law  Commission  of  India

vide the 242nd Law Commission Report. The Union of India

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has further contended that since the matter of the 242nd

Law Commission Report falls under List III, i.e., Concurrent

list  of  the  Seventh  Schedule  to  the  Constitution  of  India,

consultation with the Governments of the States and Union

Territories is a sine qua non for  taking a  policy  decision in

this regard.

10. In a further affidavit dated 16th January, 2014, the

Union of  India  has contended that  as  on the  said  date,  15

States/UTs have sent their positive responses, while

responses from other remaining States/UTs were awaited.

The Union of India filed an additional affidavit on 25th

September, 2014 wherein vide paragraph 4 it is averred

that six more States/UTs have sent positive responses in

favour of ‘The Prohibition of Interference with the Freedom

of Matrimonial Alliances Bill’ and that reminders have been

sent to the remaining States/UTs whose responses are

awaited. Further, it has been submitted that after receiving

comments from the remaining States/UTs, necessary action

shall be taken by the Union of India in the matter.  It is the

stand of the Union of India that a draft Bill in consultation

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with  all  stakeholders  will  be  prepared  for  the  avowed

purpose as soon as the comments are received. It has also

been set forth that several advisories have been issued to

the State Governments from time to time regarding the

steps needed to prevent crimes against women including

special  steps  to  be  taken  to  curb  the  menace  of  honour

killing.

11.  An  affidavit  has  been  filed  by  the  State  of  Punjab

stating, inter alia, that it is not taking adversarial position

and it does not intend to be a silent spectator to any form of

honour killing and for the said reason, it has issued Memo

No.5/151/10-5H4/2732-80 in the Department of Home

Affairs and Justice laying down and bringing into force the

revised guidelines/policies in order to remove any doubt

and to clear any uncertainty and/or threat prevalent

amongst  the  public  at  large.   The  policy,  as  put  forth,

envisages dealing with protection to newly wedded couples

who  apprehend  danger  to  life  and  liberty  for  at  least  six

weeks after marriage.  It also asserted that the State is

determined to take pre-emptive, protective and corrective

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measures and whenever any individual case comes to notice

or is highlighted, appropriate action has been taken and

shall also be taken by the Government.  That apart, the

reply affidavit reflects that all the culprits of the crime have

been booked under the law and proceeded against.

12. The State of Haryana has filed an affidavit denying the

allegations made against the State and further stating that

adequate  protection  has  been  given  to  couples  by  virtue  of

the  order  of  the  High  Court  and  District  Courts  and

sometimes by the police directly coming to know of the

situation. It is contended that FIRs have been lodged

against persons accused of the crime and the cases are

progressing as per law.  The stand of the State of Haryana is

that  an  action  plan  has  already  been  prepared  and  the

Crime Against Women Cells are functioning at every district

headquarter in the State and necessary publicity has

already been given and the citizens are aware of those cells.

13. The State of Jharkhand has filed its response stating,

inter alia, the measures taken against persons involved in

such crimes. Apart from asseverating that honour killing is

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not common in the State of Jharkhand, it is stated that it

shall take appropriate steps to combat such crimes.

14.  A  counter  affidavit  has  been  filed  on  behalf  of  NCT  of

Delhi. The affidavit states that Delhi Police does not

maintain separate record for cases under the category of

“Honour  Killing”.   However,  it  has  been  mentioned  that  by

the time the affidavit was filed, 11 cases were registered.  It

is urged that such cases are handled by the District Police

and there is a special cell functioning within Delhi Police

meant for serious crimes relating to internal security and

such cases can be referred to the said cell and there is no

necessity for constitution of a special cell in each police

district.  Emphasis  has  been  laid  that  Delhi  Police  has

sensitized the field officers in this regard so that the issues

can be handled with necessary sensitivity and sensibility.

The Department of Women and Child Development has also

made arrangements for rehabilitation of female victims

facing threat of honour killing and efforts have been made to

sensitize the society against commission of such crimes.  A

circular  dealing  with  the  subject  ‘Action  to  be  taken  to

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prevent cases of “Honour Killing”’ has been brought on

record.

15. The State of Rajasthan, in its reply, had strongly

deplored the exercise of unwarranted activities under the

garb of khap panchayats. The State of Rajasthan contends

that it has issued circulars to the police personnel to keep a

check on the activities of the panchayats and further

expressed its willingness to abide by any guidelines that

may be issued by this Court to ameliorate and curb the evil

of honour killing that subsists in our society.

16. The State of Uttar Pradesh has filed two counter

affidavits wherein it is stated that it is the primary duty of

the States to protect the Fundamental Rights enshrined and

guaranteed under the Constitution of India. It is further

contended that although there is no specific legislation to

regulate and prevent "honour killing", yet effective measures

under  the  present  law  are  being  taken  by  the  State  to

control the same. The said measures are in the nature of

directions and guidelines to the law enforcement agencies.

Further, the State of Uttar Pradesh has brought on record

that there have been no reported cases of "honour killing" or

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"social  ostracizing"  in  the  State  for  the  period  from

01.01.2010 till 31.12.2012. Yet, time and again, directions

are being given to the police stations to keep a close watch

on the activities and functioning of the Khaps. The State of

Uttar Pradesh has acceded to comply with any directions

which this Court may issue.

17. The State of Bihar has, in its affidavit, acknowledged

that  honour  killing  is  a  heinous  crime  which  violates  the

fundamental  rights  of  the  citizens.  Although  the  State  of

Bihar  has  taken  the  stance  that  cases  of  honour  killing  in

the  State  are  almost  nil,  yet  a  list  of  five  cases  which  may

assume the character of honour killing have been

mentioned in the affidavit. The State has further averred

that several reformative steps have been taken for the

upliftment and empowerment of women and constant efforts

are being made to sensitize people.  It has been asserted

that  the  State  of  Bihar  has  initiated  a  scheme  to  provide

National Saving Certificate amounting to Rs. 25,000/- as

incentive to any woman performing inter-caste marriage in

order to ensure their economic stability.

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18. It has been contended by the State of Madhya Pradesh

that the State Government and the police are alive to the

problem of honour killings and they have created a "Crime

Against Women Cell" at the State level headed by the

Inspector General of Police to ensure safety of couples and

active  prosecution in  each case  of  honour  killing.  The M.P.

Government, vide order no. F/21-261/10 dated 27.01.2011,

has issued specific instructions to the District

Magistrates/Superintendent of Police for taking strict action

in cases of honour killing.

19. It is the contention of the State of Himachal Pradesh

that  there  are  no  Panchayats  of  the  nature  of  Khap

Panchayats operating in the State of Himachal Pradesh and

that there have been no cases of honour killing reported in

the past 10 years. The State avers that several measures are

being  taken  to  combat  the  social  evils  prevailing  in  the

society.

20. An application for intervention, on behalf of several

Khap Panchayats, filed by “Manushi Sanghatan” has been

allowed. It has been averred by Manushi Sanghatan that, on

being requested by the media to voice their concern on the

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activities of Khap panchayats, the Sanghatan has

conducted a survey into the functioning of the Khap

Panchayats,  but  they  were  unable  to  find  any  evidence  to

hold the Khap Panchayats responsible for honour killings

occurring in the country. In this factual background, the

Sanghatan contends that the proposed bill, “The Prohibition

of Interference with the Freedom of Matrimonial Alliances

Bill', is a futile exercise in view of the ample existing penal

provisions and it is stated that the powers that the said bill

aims  to  stipulate  may  have  the  result  of  giving  power  to

vested interests to harass well meant gatherings of local

communities. The intervenor has also challenged the

findings of the report of the petitioner on various grounds.

21. The petitioner has filed a rejoinder affidavit wherein it

has been highlighted that this Court has taken cognizance

of the brutal killings that take place in the name of honour

and it is urged that although some States have formed an

Action Plan in pursuance of the directions issued by this

Court, yet they have failed to effectively implement the same

in letter and spirit. In view of this fact, effective guidelines to

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the police and law enforcement agencies to curb the menace

of honour killing need to be formulated and implemented.

22. From the stand taken by the concerned States, it is

perceivable that the authorities, while denying the

incidences being visible, do not dispute the sporadic

happenstance of such occurrences and speak in a singular

voice by decrying such acts.  It is also clear that some such

Panchayats take the positive stance demonstrating their

collective effort as to how they cultivate in people the idea of

inter-caste marriage and community acceptance.  The duty

of this Court, in view of the authorities in the field that deal

with specific circumstances, is to view the scenario from the

prism of pragmatic ground reality as has been projected and

to act within the constitutional parameters to protect the

liberty and life of citizens. Commitment to the constitutional

values requires this Court to be sensitive and act in such a

matter and we shall do so within the permissible boundaries

and framework because as the guardian of the rights of the

citizens, this Court cannot choose the path of silence.

23. Before we engage ourselves in the process what we

have stated hereinabove and refer to the earlier decisions of

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this Court, we think it apt to refer to the 242nd Report

submitted  by  the  Law  Commission  of  India,  namely,

“Prevention of Interference with the Freedom of Matrimonial

Alliances (in the name of Honour and Tradition): A

Suggested Legal Framework”. The relevant extracts of the

Report read as follows:-

“1.2 At the outset, it may be stated that the words ‘honour killings’ and ‘honour crimes’ are being used loosely as convenient expressions to describe the incidents of violence and harassment caused to the young couple intending to marry or having married against the wishes of the community or family members. They are used more as catch phrases and not as apt and accurate expressions.

1.3  The  so-called  ‘honour  killings’  or  ‘honour crimes’ are not peculiar to our country. It is an evil which haunts many other societies also. The belief that the victim has brought dishonour upon  the  family  or  the  community  is  the  root cause of such violent crimes. Such violent crimes are directed especially against women. Men also become targets of attack by members of family of a  woman  with  whom  they  are  perceived  to  have an ‘inappropriate relationship’. Changing cultural and  economic  status  of  women  and  the  women going against their male dominated culture has been one of the causes of honour crimes. In some western cultures, honour killings often arise from women seeking greater independence and choosing their own way of  life.  In some cultures, honour killings are considered less serious than other murders because they arise from long standing cultural traditions and are thus deemed appropriate or justifiable. An adulterous behaviour of woman or pre-marital relationship

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or assertion of right to marry according to their choice,  are  widely  known  causes  for  honour killings in most of the countries. The report of the Special Rapporteur to U.N. 1  of the year 2002 concerning cultural practices in the family that are violent towards women indicated that honour killings had been reported in Jordon, Lebanon, Morocco, Pakistan, United Arab Republic, Turkey, Yemen and other Persian Gulf countries and that they had also taken place in western countries such as France, Germany and U.K. mostly within migrant communities. The report “Working towards the elimination of crimes against women committed in the name of honour”2 submitted to the United Nations High Commissioner for Human Rights is quite revealing. Apart from the other countries named above,  according  to  the  UN  Commission  on Human  Rights,  there  are  honour  killings  in  the nations of Bangladesh, Brazil, Ecuador, India, Israel, Italy, Morocco, Sweden, Turkey and Uganda. According to Mr. Widney Brown, Advocacy  Director  for  Human  Rights  Watch,  the practice of honour killing “goes across cultures and across religions”. There are reports that in some communities, many are prepared to condone  the  killing  of  someone  who  have dishonoured their family. The 2009 European Parliamentary Assembly noted the rising incidents  of  honour  crimes  with  concern.  In 2010, Britain saw a 47% rise of honour-related crimes. Data from police agencies in the UK report 2283 cases in 2010 and most of the attacks were conducted in cities that had high immigrant populations. The national legal Courts in some countries viz., Haiti, Jordon, Syria, Morocco and two Latin American countries do not penalize men killing female relatives found committing adultery or the husbands killing their

1 http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/ 42e7191fae543562c1256 ba7004e963c/$FILE/G0210428.pdf 2http://www.unhchr.ch/Huridocda/Huridoca.nsf/e06a5300f90fa0238025668700518ca4/985168f508e e799fc1256 c52002ae5a9/$FILE/N0246790.pdf

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wives  in  flagrante  delicto.  A  survey  by  Elen  R. Sheelay 3  revealed that 20% of Jordanites interviewed simply believe that Islam condones or even  supports  killing  in  the  name  of  family honour which is a myth.

1.4 As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is  also  one  of  the  known  places  for  “honour killings”.  Even  some  incidents  are  reported  from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members. 1.5 The Commission tried to ascertain the number of such incidents, the accused involved, the specific reasons, etc., so as to have an idea of the general crime scenario in such cases. The Government authorities of the States where incidents often occur have been addressed to furnish the information. The Director (SR) in the Ministry of Home Affairs, by her letter dated 26 May 2010, also requested the State Governments concerned to furnish the necessary information to the Commission. However, there has been no response despite reminder. But, from the newspaper reports, and reports from various other sources, it is clear that the honour crimes occur in those States as a result of people marrying without their family’s acceptance and for marrying outside their caste or religion. Marriages between the couple belonging to same Gotra (family name) have also often  led  to  violent  reaction  from  the  family members or the community members. The Caste councils  or  Panchayats  popularly  known  as ‘Khap Panchayats’ try to adopt the chosen course of ‘moral vigilantism’ and enforce their diktats by

3 Quoted in Anver Emon’s Article on Honour Killings

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assuming to themselves the role of social or community guardians.”

[underlining is ours]

24. Adverting to the dimensions of the problem and the

need for a separate law, the Report states:-

“2.3 The pernicious practice of Khap Panchayats and the like taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of  law  and  invasion  of  personal  liberty  of  the persons affected.

2.4 Sagotra marriages are not prohibited by law, whatever  may  be  the  view  in  olden  times.  The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a  view to  dispel  any doubts  in this regard. The Act expressly declared the validity of marriages between the Hindus belonging  to  the  same  ‘gotra’  or  ‘pravara’  or different sub-divisions of same caste. The Hindu Marriage Act does not prohibit sagotra or inter- caste marriages.”

And further:-

“2.5 The views of village elders or family elders cannot be forced on the willing couple and no one has a right to use force or impose far-reaching sanctions in the name of vindicating community honour or family honour. There are reports that drastic action including wrongful confinement, persistent harassment, mental torture, infliction of or threats of severe bodily harm is resorted to either by close relations or some third parties against the so-called erring couple either on the exhortations of some or all the Panchayatdars or

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with their connivance. Several instances of murder  of  one  or  the  other  couple  have  been  in the  news.  Social  boycotts  and  other  illegal sanctions affecting the young couple, the families and even a section of local inhabitants are quite often resorted to.  All  this is done in the name of tradition and honour. The cumulative effect of all such acts have public order dimensions also.”

25. The Law Commission had prepared a draft Bill and

while adverting to the underlying idea of the provisions of

the draft Bill, it has stated:-

“2.8 The idea underlying the provisions in the draft Bill is that there must be a threshold bar against congregation or assembly for the purpose of objecting to and condemning the conduct of young persons of marriageable age marrying according to their choice, the ground of objection being that they belong to the same gotra or to different castes or communities. The Panchayatdars or caste elders have no right to interfere  with  the  life  and  liberty  of  such  young couples whose marriages are permitted by law and they cannot create a situation whereby such couples are placed in a hostile environment in the village/locality concerned and exposed to the risk  of  safety.  Such  highhanded  acts  have  a tendency to create social tensions and disharmony too. No frame of mind or belief based on social hierarchy can claim immunity from social  control  and  regulation,  in  so  far  as  such beliefs manifest themselves as agents of enforcement of right and wrong. The very assembly  for  an  unlawful  purpose  viz. disapproving the marriage which is otherwise within the bounds of law and taking consequential action should be treated as an offence as it has the potential to endanger the lives and liberties of individuals concerned. The object of such an assembly is grounded on

24

disregard  for  the  life  and  liberty  of  others  and such conduct shall be adequately tackled by penal  law.  This  is  without  prejudice  to  the prosecution to be launched under the general penal law for the commission of offences including abetment and conspiracy.

2.9  Given  the  social  milieu  and  powerful background of caste combines which bring to bear intense pressure on parents and relatives to go  to  any  extent  to  punish  the  ‘sinning’  couples so  as  to  restore  the  community  honour,  it  has become necessary to deal with this fundamental problem. Any attempt to effectively tackle this socio-cultural phenomenon, rooted in superstition and authoritarianism, must therefore address itself to various factors and dimensions, viz, the nature and magnitude of the problem, the adequacy of existing law, and the wisdom  in  using  penal  and  other  measures  of sanction to curb the power and conduct of caste combines. The law as it stands does not act either as a deterrence or as a sobering influence on the caste combinations and assemblies who regard themselves as being outside the pale of law. The socio-cultural outlook of the members of caste councils or Panchayats is such that they have minimal or scant regard for individual liberty and autonomy.”

     [Emphasis added]

26. Highlighting the aspect of autonomy of choices and

liberty,  the  underlying  object  of  the  proposed  Bill  as  has

been stated by the Law Commission reads as under :-

“4.1 The autonomy of every person in matters concerning oneself – a free and willing creator of one’s own choices and decisions, is now central to  all  thinking  on  community  order  and organization. Needless to emphasize that such autonomy  with  its  manifold  dimensions  is  a

25

constitutionally protected value and is central to an open society and civilized order. Duly secured individual autonomy, exercised on informed understanding of the values integral to one’s well being is deeply connected to a free social order. Coercion against individual autonomy will then become least necessary.

4.2 In moments and periods of social transition, the tensions between individual freedom and past social practices become focal points of the community’s ability to contemplate and provide for least hurting or painful solutions. The wisdom or wrongness of certain community perspectives and practices, their intrinsic impact on liberty, autonomy and self-worth, as well as the parents’ concern over impulsive and unreflective choices – all these factors come to the fore-front of consideration.

4.3 The problem, however, is the menacing phenomena of repressive social practices in the name of honor triggering violent reaction from the influential members of community who are blind to individual autonomy. …”

27. Thus, the Report shows the devastating effect of the

crime and the destructive impact on the right of choice of an

individual and the control of the collective over the said

freedom.  The Commission has emphasized on the intense

pressure  of  the  powerful  community  and  how  they  punish

the “sinning couples” according to their socio-cultural

perception and community honour and the action taken by

them that results in extinction of the rights of individuals

which  are  guaranteed  under  the  Constitution.   It  has

26

eloquently canvassed about the autonomy of every person in

matters concerning oneself and the expression of the right

which is integral to the said individual.

28. Be it noted, the draft Bill refers to "Khap Panchayat" to

mean any person or group of persons who have gathered,

assembled  or  congregated  at  any  time  with  the  view  or

intention of condemning any marriage, including a proposed

marriage,  not  prohibited  by  law,  on  the  basis  that  such

marriage has dishonoured the caste or community tradition

or  brought  disrepute  to  all  or  any  of  the  persons  forming

part  of  the  assembly  or  the  family  or  the  people  of  the

locality concerned.

29. Presently, we shall advert to certain pronouncements

of  this  Court  where  the  Court,  while  adjudicating  the lis of

the said nature, has expressed its concern with regard to

such social evil which is the manifestation of perverse

thought, egotism at its worst and inhuman brutality.

30. In Lata Singh v. State of U.P. and another4, a two-

Judge Bench, while dealing with a writ petition under

Article 32 of the Constitution which was filed for issuing a

writ  of certiorari and/or mandamus for quashing of a trial,

4 (2006) 5 SCC 475

27

allowed the writ petition preferred by the petitioner whose

life along with her husband’s life was in constant danger as

her brothers were threatening them.  The Court observed

that  there  is  no  bar  for  inter-caste  marriage  under  the

Hindu Marriage Act or any other law and, hence, no offence

was committed by the petitioner, her husband or husband’s

relatives. The Court also expressed dismay that instead of

taking action against the petitioner’s brothers for unlawful

and high handed acts, the police proceeded against the

petitioner’s husband and her sisters-in-law. Being aware of

the harassment faced and violence against women who

marry outside their caste, the Court observed:-

“17. … This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can  do  is  that  they  can  cut-off  social  relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. …”

31. After so stating, the two-Judge Bench directed the

administration/police authorities throughout the country to

ensure  that  if  any  boy  or  girl  who  is  a  major  undergoes

inter-caste or inter-religious marriage with a woman or man

28

who is a major, the couple is neither harassed by anyone

nor subjected to threats or acts of violence, and that 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 law.  Deliberating further, the Court

painfully stated:-

“18. 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.”

32. In Arumugam Servai v. State of Tamil Nadu5, the

Court referred to the observations made in Lata Singh’s

case and opined:-

“12.  We  have  in  recent  years  heard  of  “Khap Panchayats” (known as “Katta Panchayats” in Tamil  Nadu)  which  often  decree  or  encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with

5 (2011) 6 SCC 405

29

the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.”

33. After so stating, the Court directed the administrative

and police officials to take strong measures to prevent such

atrocious acts. If such incidents happen, apart from

instituting criminal proceedings against those responsible

for the atrocities, the State Government was directed to

immediately suspend the District Magistrate/Collector and

SSP/SPs of the district as well as other officials concerned

and charge-sheet them and proceed against them

departmentally if they do not (1) prevent the incident if it

has  not  already  occurred  but  they  have  knowledge  of  it  in

advance, or (2) if it has occurred, they do not promptly

apprehend the culprits and others involved and institute

criminal proceedings against them. Be it noted, in the said

30

case, the Court commented on the appellants that they had

behaved like uncivilized savages and deserved no mercy.

34. The aforesaid view of the Court was further

emphasized in Bhagwan  Dass  v.  State  (NCT  of  Delhi)6

wherein it has been stated that many people feel that they

are dishonoured by the behaviour of the young man/woman

who  is  related  to  them  or  belongs  to  their  caste  simply

because he/she is marrying against their wish or having an

affair with someone, and hence they take the law into their

own  hands  and  kill  or  physically  assault  such  person  or

commit some other atrocities which is wholly illegal. Regard

being had to the expression of unhappiness with the

behaviour of a daughter or other person, the Court observed

that  the  maximum  a  person  can  do  is  to  cut  off  social

relations with her/him, but he cannot take the law into his

own  hands  by  committing  violence  or  giving  threats  of

violence.

35. In Re: India Woman says Gang-raped on Orders of

Village Court published in Business & Financial News

dated 23-1-20147, the Court, after referring to Lata Singh

6 (2011) 6 SCC 396 7 (2014) 4 SCC 786

31

(supra), Arumugam Servai (supra) and adverting to the

242nd Report of the Law Commission, opined:-

“16.  Ultimately,  the  question  which  ought  to consider and assess by this Court is whether the State police machinery could have possibly prevented the said occurrence. The response is certainly a “yes”. The State is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution  would  be  the  freedom  of  choice  in marriage. Such offences are resultant of the State’s incapacity or inability to protect the fundamental rights of its citizens.”

And again:-

“18. As a long-term measure to curb such crimes, a larger societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic condition of women, sensitisation of the police and other parties concerned towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women.”

36. In Vikas  Yadav  v.  State  of  Uttar  Pradesh  and

others 8 , the two-Judge Bench, while dwelling upon the

quantum  of  sentence  in  the  case  where  the  young  man

chosen by the sister was murdered by the brother who had

received education in good educational institutions,

observed that the accused persons had not cultivated the

8 (2016) 9 SCC 541

32

ability to abandon the deprecable feelings and attitude for

centuries.  Perhaps, they had harboured the fancy that it  is

an idea of which time had arrived from time immemorial

and ought to stay till eternity.  Proceeding further, the Court

held:-

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

37. In Asha Ranjan v.  State  of  Bihar  and others9, the

Court, in a different context, noted:-

“61.  …choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the  Constitution  under  Article  19,  and  such  a right is not expected to succumb to the concept of  “class  honour”  or  “group  thinking”.  It  is

9 (2017) 4 SCC 397

33

because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion.”

38. In State of U.P. v. Krishna Master and others10, the

Court, while setting aside the judgment of acquittal of the

High Court, convicted the accused persons with rigorous

imprisonment for life and fine of Rs. 25,000/-. It observed

that killing of six persons and wiping out of almost the

whole family on the flimsy ground of saving of honour 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, taking into consideration the fact

that the incident had taken place before twenty years, it did

not pass the death sentence but imposed the sentence of

rigorous imprisonment for life. The said decision reflects the

gravity of the crime that occurs due to “honour killing”.

39. The aforesaid authorities show the distress with which

the Court has perceived the honour crimes and also reflects

the uneasiness and anxiety to curb such social symptoms.

The observations were made and the directions were issued

in cases where a crime based on honour was required to be

10 AIR 2010 SC 3071

34

dealt with. But, the present case, in contradistinction,

centres around honour killing and its brutality and the

substantive measures to be taken to destroy the said

menace. The violation of the constitutional rights is the

fulcrum  of  the  issue.  The  protection  of  rights  is  pivotal.

Though there has been constant social advancement, yet

the  problem  of  honour  killing  persists  in  the  same  way  as

history had seen in 1750 BC under the Code of Hammurabi.

The people involved in such crimes become totally oblivious

of the fact that they cannot tread an illegal path, break the

law  and  offer  justification  with  some  kind  of  moral

philosophy of their own.  They forget that the law of the land

requires that the same should be shown implicit obedience

and profound obeisance.  The human rights of a daughter,

brother,  sister or son are not mortgaged to the so-called or

so-understood honour of the family or clan or the collective.

The  act  of  honour  killing  puts  the  rule  of  law  in  a

catastrophic crisis.

40.  It  is  necessary  to  mention  here  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  lone  one.  It  is  a  part  of  honour

35

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 tantamounts 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.

41. 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.

36

Therefore, the Khap Panchayat or any Panchayat of any

nomenclature cannot create a dent in exercise of the said

right.

42. In this regard, we may fruitfully reproduce a passage

from Kartar Singh v. State of Punjab 11  wherein C.G.

Weeramantry in ‘The Law in Crisis – Bridges of

Understanding’ emphasizing the importance of rule of law in

achieving social interest has stated:-

“The protections the citizens enjoy under the Rule of Law are the quintessence of twenty centuries of human struggle. It is not commonly realised how easily  these  may  be  lost.  There  is  no  known method of retaining them but eternal vigilance. There is no known authority to which this duty can be delegated but the community itself. There is no known means of stimulating this vigilance but education of the community towards an enlightened interest in its legal system, its achievements and its problems.”

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

11 (1994) 3 SCC 569

37

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.

43. The concept of liberty has to be weighed and tested on

the touchstone of constitutional sensitivity, protection and

the  values  it  stands  for.  It  is  the  obligation  of  the

Constitutional Courts as the sentinel on qui vive to zealously

guard the right to liberty of an individual as the dignified

existence of an individual has an inseparable association

with liberty. Without sustenance of liberty, subject to

constitutionally valid provisions of law, the life of a person is

comparable to the living dead having to endure cruelty and

torture without protest and tolerate imposition of thoughts

and ideas without a voice to dissent or record a

disagreement. The fundamental feature of dignified

existence is to assert for dignity that has the spark of

divinity and the realization of choice within the parameters

of  law  without  any  kind  of  subjugation.  The  purpose  of

laying  stress  on  the  concepts  of  individual  dignity  and

choice within the framework of liberty is of paramount

38

importance. We may clearly and emphatically state that life

and liberty sans dignity and choice is a phenomenon that

allows hollowness to enter into the constitutional

recognition of identity of a person.

44.  The  choice  of  an  individual  is  an  inextricable  part  of

dignity,  for  dignity  cannot  be  thought  of  where  there  is

erosion  of  choice.  True  it  is,  the  same  is  bound  by  the

principle  of  constitutional  limitation  but  in  the  absence  of

such  limitation,  none,  we  mean,  no  one  shall  be  permitted

to interfere in the fructification of the said choice. If the

right to express one's own choice is obstructed, it would be

extremely difficult to think of dignity in its sanctified

completeness.  When two adults  marry  out  of  their  volition,

they choose their path; they consummate their relationship;

they feel that it is their goal and they have the right to do so.

And it can unequivocally be stated that they have the right

and  any  infringement  of  the  said  right  is  a  constitutional

violation.  The  majority  in  the  name  of  class  or  elevated

honour of clan cannot call for their presence or force their

appearance as if they are the monarchs of some

indescribable era who have the power, authority and final

39

say to impose any sentence and determine the execution of

the same in the way they desire possibly harbouring the

notion that  they  are  a  law unto  themselves  or  they  are  the

ancestors  of  Caesar  or,  for  that  matter,  Louis  the  XIV.  The

Constitution  and  the  laws  of  this  country  do  not

countenance such an act and, in fact, the whole activity is

illegal and punishable as offence under the criminal law.

45. It has been argued on behalf of the "Khap Panchayats"

that  it  is  a  misnomer  to  call  them  by  such  a  name.  The

nomenclature is absolutely irrelevant. What is really

significant is that the assembly of certain core groups meet,

summon and forcefully ensure the presence of the couple

and the family members and then adjudicate and impose

punishment. Their further submission is that these

panchayats are committed to the spreading of awareness of

permissibility of inter-community and inter-caste marriages

and  they  also  tell  the  people  at  large  how  "Sapinda"  and

"Sagotra” marriages have no sanction of law. The

propositions have been structured with immense craft and

advanced with enormous zeal and enthusiasm but the

fallacy behind the said proponements is easily decipherable.

40

The  argument  is  founded  on  the  premise  that  there  are

certain statutory provisions and certain judgments of this

Court which prescribe the prohibitory degrees for marriages

and provide certain guidelines for maintaining the sex ratio

and not giving any allowance for female foeticide that is a

resultant effect of sex determination which is prohibited

under the Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition on Sex Selection) Act, 1994 (for

short ‘PCPNDT Act’) (See : Voluntary Health Association of

Punjab v. Union of India and others12 and Voluntary Health

Association of Punjab v. Union of India and others13).

46. The first argument deserves to be rejected without

much discussion. Suffice it to say, the same relates to the

recognition of matrimonial status. If it is prohibited in law,

law  shall  take  note  of  it  when  the  courts  are  approached.

Similarly, PCPNDT Act is a complete code. That apart, the

concern of this Court in spreading awareness to sustain sex

ratio  is  not  to  go  for  sex  determination  and  resultantly

female foeticide. It has nothing to do with the institution of

marriage.

12 (2013) 4 SCC 1 13 (2016) 10 SCC 265

41

47. 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. For example, when a crime under IPC is

committed, an assembly of people cannot impose the

punishment.  They  have  no  authority.  They  are  entitled  to

lodge an FIR or inform the police. They may also facilitate so

that the accused is dealt with in accordance with law. But,

by putting forth a stand that they are spreading awareness,

they really can neither affect others' fundamental rights nor

cover up their own illegal acts. It is simply not permissible.

In fact,  it  has to be condemned as an act abhorrent to law

and, therefore, it has to stop. Their activities are to be

stopped in entirety. There is no other alternative.  What is

illegal cannot commend recognition or acceptance.

48.  Having noted the viciousness of honour crimes and

considering the catastrophic effect of such kind of crimes on

the society, it is desirable to issue directives to be followed

by  the  law  enforcement  agencies  and  also  to  the  various

42

administrative authorities.  We are disposed to think so as it

is the obligation of the State to have an atmosphere where

the citizens are in a position to enjoy their fundamental

rights. In this context, a passage from S. Rangarajan v. P.

Jagjivan Ram and others14 is worth reproducing:-

“51. We are amused yet troubled by the stand taken by the State Government with regard to the film  which  has  received  the  National  Award.  We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film, is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation  of  the  rule  of  law  and  a  surrender  to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is  a  liberty  guaranteed  against  the  State.  The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.

We are absolutely conscious that the aforesaid passage

has been stated in respect of a different fundamental right

but the said principle applies with more vigour when the life

and liberty of individuals is involved. We say so reminding

the  States  of  their  constitutional  obligation  to  comfort  and

14 (1989) 2 SCC 574

43

nurture the sustenance of fundamental rights of the citizens

and  not  to  allow  any  hostile  group  to  create  any  kind  of

trench in them.

49. We may also hold here that an assembly or Panchayat

committed to engage in any constructive work that does not

offend the fundamental rights of an individual will not stand

on the same footing of Khap Phanchayat.  Before we proceed

to issue directions to meet the challenges of honour crime

which includes honour killing, it is necessary to note that as

many as 288 cases of honour killing were reported between

2014 and 2016. According to the data of National Crime

Records Bureau (NCRB), 28 honour killing cases were

reported in 2014, 192 in 2015 and 68 in the year 2016.

50. We may note with profit that honour killings are

condemned  as  a  serious  human  rights  violation  and  are

addressed by certain international instruments. The Council

of Europe Convention on Preventing and Combating

Violence Against Women and Domestic Violence addresses

this issue. Article 42 reads thus:-

“Article 42 – Unacceptable justifications for crimes, including crimes committed in the name of so-called “honour”

44

1. Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called “honour” shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.

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

51. Once the fundamental right is inherent in a person,

the  intolerant  groups  who  subscribe  to  the  view  of

superiority class complex or higher clan cannot scuttle the

right of a person by leaning on any kind of philosophy,

moral or social, or self-proclaimed elevation. Therefore, for

the sustenance of the legitimate rights of young couples or

anyone associated with them and keeping in view the role of

this Court as the guardian and protector of the

constitutional  rights  of  the  citizens and further  to  usher  in

an atmosphere where the fear to get into wedlock because of

the threat of the collective is dispelled, it is necessary to

issue directives and we do so on the foundation of the

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principle stated in Lakshmi  Kant  Pandey  v.  Union  of

India15, Vishaka and others v. State of Rajasthan and

others 16  and Prakash  Singh  and  others  v.  Union  of

India and others17.

52. It is worthy to note that certain legislations have come

into existence to do away with social menaces like “Sati”

and “Dowry”. It is because such legislations are in accord

with our Constitution. Similarly, protection of human rights

is  the  élan  vital  of  our  Constitution  that  epitomizes

humanness and the said conceptual epitome of humanity

completely ostracizes any idea or prohibition or edict that

creates a hollowness in the inalienable rights of the citizens

who enjoy their rights on the foundation of freedom and on

the  fulcrum  of  justice  that  is  fair,  equitable  and

proportionate. There cannot be any assault on human

dignity as it has the potentiality to choke the majesty of law.

Therefore, we would recommend to the legislature to bring

law  appositely  covering  the  field  of  honour  killing.  In  this

regard,  we may usefully  refer  to  the  authority  wherein  this

15 (1984) 2 SCC 244 16 (1997) 6 SCC 241 17 (2006) 8 SCC 1

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Court has made such recommendation. In Samrendra

Beura v. Union of India and others18, this Court held:-

“16. Though such amendments have been made by Parliament under the 1950 Act and the 1957 Act, yet no such amendment has been incorporated in the Air Force Act, 1950. The aforesaid provisions, as we perceive, have been incorporated in both the statutes to avoid hardship to persons convicted by the Court Martial. Similar hardship is suffered by the persons who are sentenced to imprisonment under various provisions of the Act. Keeping in view the aforesaid amendment in the other two enactments and regard being had to the purpose of the amendment and the totality of the circumstances, we think it apt to recommend the Union of India to seriously consider to bring an amendment in the Act so that the hardships faced by the persons convicted by the Court Martial are avoided.”

53. Mr. Raju Ramachandran, learned senior counsel being

assisted by Mr. Gaurav Agarwal, has filed certain

suggestions for issuing guidelines. The Union of India has

also given certain suggestions to be taken into account till

the legislation is made. To meet the challenges of the

agonising effect of honour crime, we think that there has to

be preventive, remedial and punitive measures and,

accordingly, we state the broad contours and the modalities

with liberty to the executive and the police administration of

18 (2013) 14 SCC 672

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the concerned States to add further measures to evolve a

robust mechanism for the stated purposes.

I. Preventive Steps:-

(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 Incharge 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

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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.

Additionally, he should issue appropriate directions to the

Officer  Incharge  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

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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 work on

sensitization of the law enforcement agencies to mandate

social initiatives and awareness to curb such violence.

II. Remedial Measures:-

(a) Despite the preventive measures taken by the State

Police,  if  it  comes  to  the  notice  of  the  local  police  that  the

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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

(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

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families/local community/Khaps). Such safe houses may be

placed under the supervision of the jurisdictional District

Magistrate and Superintendent of Police.

(d) 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.

(e) 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

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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.

(f) The District Superintendent of Police, upon receipt of

such report, shall direct the Deputy Superintendent of

Police incharge 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 fore, they shall also be charged for

the offence of conspiracy or abetment, as the case may be.

III. Punitive Measures:-

(a) Any failure by either the police or district

officer/officials to comply with the aforesaid directions shall

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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.

(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

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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.

54. The measures we have directed to be taken have to be

carried out within six weeks hence by the respondent-

States.  Reports of compliance be filed within the said period

before the Registry of this Court.

55. The Writ Petition is, accordingly, disposed of.  There

shall be no order as to costs.

 .………………………….CJI                                                   (Dipak Misra)

            ...…………….…………….J.                   (A.M. Khanwilkar)

…..….……………………..J. (Dr. D.Y. Chandrachud)

New Delhi; March 27, 2018