Half Steps against Honour Crimes/the illegal decrees by caste/clan/community panchayats to annul or prohibit marriages,

Half Steps against Honour Crimes

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Vol XLVII No.7 February 18, 2012

The Law Commission’s bill on combating honour crimes falls short of what is required.

Honour crimes – the illegal decrees by caste/clan/community panchayats to annul or prohibit marriages, social boycotts and even murder of couples – have finally drawn the attention of the State. A consultation paper released by the Law Commission contains a draft bill – The ­Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011 – that proposes declaring khaps as unlawful and suggests handing down punitive punishment for intimidation of couples. A week after this paper was released on 24 January, newspapers reported that a panel headed by the secretary for women and child development in the central government had also demanded a stand-alone law against honour crimes. A similar draft circulated by the National Commission for Women (NCW) chairperson, Girija Vyas, and prepared by the All India Democratic Women’s Association about a year ago contained stronger definitions of “honour killings” and suggested appropriate amendments to the Indian Penal Code (IPC).

The Law Commission’s bill is, however, primarily concerned with the “unlawful assemblies” of khap panchayats and steers clear of suggesting amendments to the IPC to define honour killings and proposing appropriate punishment. The commission has chosen this option so as to avoid difficulties in defining and interpreting such killings. However, by invoking criminal law in the proposed bill the commission has taken a major decision. It has suggested that an entire assembly can be deemed to be unlawful and guilty if it sits to deliberate on any marriage that is not prohibited by law. In other words, guilt will be communal and not just individual. Guilt will also be assumed until the individuals who participate in such assemblies are proven to be innocent – what is called the “reverse onus” cause. Similar provisions about placing the burden of proof on the accused to prove their innocence are present in the NCW draft as well, but the latter extends to murders as well.

While the Law Commission acknowledges that shifting the burden of proving his/her innocence to the accused in the case of murders or in their abetment would be against the cardinal principle of jurisprudence, it argues that a presumption of guilt in participation in unlawful assemblies is necessary because obtaining eyewitnesses for the presence of individuals in those assemblies is difficult. But why cannot such an assumption hold true in the case of an honour killing itself, difficult as it is to establish guilt because of the social sway that caste/clan ­panchayats hold over those involved in such crimes?

The Law Commission calls for protection of couples threatened by the unlawful assemblies – with the collector and district magistrate empowered to do so – but it does not include the NCW’s demand that the Special Marriage Act be amended to provide for the removal of the 30-day waiting period for registering a marriage. Women activists have argued that this change is required because it allows the couple to get married immediately, provided there is mutual consent and both are above the legally permissible age.

A question that is asked is if a communal law which can transgress individual civil liberties is necessary when law enforcement itself is so poor. Khap panchayats have enjoyed legitimacy because of the support provided by the major political parties and police administration in states like Haryana and ­Uttar Pradesh where honour killings take place the most. Will a separate law that criminalises participation in assemblies that endorse honour crimes deter them when the existing laws against murder, abetment and conspiracy have not prevented them?

There is a lot of weight in the gender activists’ argument that such legislation will indeed work. Special laws such as the Commission of Sati (Prevention) Act have helped in deterring such crimes and have aided social reformists in their efforts to eradicate such practices. Honour crimes – a misnomer in itself – do fit the category of special crimes as they take place with social sanction and are very difficult to prove in court because of the social pressures that are placed on the victims or those who want to get justice on their behalf. Specific and special laws that clearly define these crimes and declare ­assemblies unlawful will aid activists in their struggles against these crimes.

The Law Commission’s bill tries to marry accepted principles of jurisprudence related to individual civil liberties with measures and laws specifically designed to counter honour crimes. The commission could have stretched the principle of burden of proof to cover what gender activists are demanding as well in order to provide justice to victims of honour killings. Yet it is also true that without comprehensive social and economic reforms that tackle caste hierarchy, patriarchy and skewed landownership, the barbarity that is honour crimes cannot be totally eradicated from Indian society.