There is a strong sense of honour ingrained in patriarchal societies like ours in matters related to decisions made by female members, in particular and youth in general, of the society/community. More recently, this emotion has come to the fore in matters of sagotra marriages, inter-caste, inter-community and inter-religion marriages. It is a result of this rigid and dogmatic belief and sense of self that has manifested in disturbing news of young couples being chased and killed by their own family members. The trends are destructive of the very foundations of the social order and shake the conscience of the people.
It is not just the deaths which need to be deterred but also the power assumed by the self proclaimed caste panchayats who assume an all imposing authority to rule on the choices made by the young couples and feel no inhibitions in passing cruel diktats if people do not comply. On the very outset it can be said that such informal institutions curb the freedom of life and liberty of individuals granted and guaranteed by the Constitution of India. This demands strict laws with stricter penalties to deter such elements functioning in the system and spreading threats.
In view of the increasing menace of these khap panchayats strong opinion has been voiced by various segments of community. An important contribution to this movement has been made by the Law Commission of India in its Report no. 242. Below are some highlights of the report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework.
The report recognises that penal laws lack direct application to the illegal acts of such caste assemblies and that 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.
It further states that Sagotra marriages are not prohibited by law, whatever may be the view in olden times and The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any doubts in this regard. In fact 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. Even the Hindu Marriage Act does not prohibit sagotra or inter-caste marriages.
In recognition of the state of affairs and the brutality of the crimes that are committed in the name of saving honour of the community and the family the report proposes a draft bill to fight the social evil. The main focus of the proposed sections of the Bill is the congregation/assembly by the village elders which propagates the views against the marriages and act as an instrument in the hands of the so called panchayats to manipulate the people.
The salient features of the proposed Bill are:
- The Bill proposes that there should be a threshold bar against the congregation or assembly for the purpose of disapproving an intended marriage or the conduct of the young couple and this objectionable conduct of the panchayatdars should be brought within the penal provisions. Section 3 and 4 are relevant proposed sections criminalising an assembly for the purpose of condemning a marriage which is not prohibited by any law.
- The other Section, i.e., Section 4 would deal with criminal intimidation by the members of unlawful assembly or others to secure compliance with the illegal decision of the assembly. Such acts of criminal intimidation which are punishable under the general law, i.e., the Indian Penal Code have been specifically introduced for the purpose of meting out higher punishment to the members of unlawful assembly. The other penal provisions and the situations referred to in the proposed Bill have not been taken care of nor covered by the provisions of Penal Code.
- Section 5 makes it clear that the provisions of Sections 2, 3, and 4 of the proposed Bill are without prejudice to the provisions of IPC.
- In order to have sufficient deterrent effect, mandatory minimum punishments have been prescribed while taking care to see that such punishment has an element of proportionality.
- Apart from these penal provisions, a specific section has been proposed to empower the District Magistrate or the SDM to take preventive measures and a further obligation is cast on them to take note of the information laid before them by the marrying couple or their family members and to extend necessary protection to them. The officials are made accountable for the failure or omission on their part to take necessary steps to prevent unlawful assembly (caste panchayats, etc.) or to give protection to the targeted couple. It has been provided that the offences shall be tried by a Court of Sessions in the District presided over by the Sessions Judge or Additional Sessions Judge as notified by the High Court.
- The offences under the proposed Bill are cognizable, non-bailable and non- compoundable.
- Section 6 of the proposed Bill provides that a presumption to the effect that the participants in unlawful assembly intended to commit and abet the offences punishable under Section 3 and 4 of the Bill in order to carry out the illegal decision taken by them. Such presumption will supply an important link in the chain of evidence. In respect of the overt acts under Sections 3 and 4, this presumption would be attracted.
The report makes a strenuous effort to explain the difference between section 141, IPC relating to unlawful assembly and the prohibition of unlawful assembly of the panchayats under this proposed Bill. It explains thus, “Section 141 I.P.C. fifth clause alone has some resemblance to the subject on hand. However, the thrust of that clause is the conduct of subjecting – “any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do”. It is doubtful whether the unlawful assembly of the nature contemplated by the proposed Bill is covered under Section 14, IPC. That apart, the proposed law intends to deal with the conduct of local bodies or caste assemblies and to strike at the blind fury of such associations acting in disregard of liberty of persons. A special class of unlawful assembly with a different punishment is, therefore, suggested as a measure of greater efficacy. In any event, Section 149 I.P.C. read with Section 141 (which envisages five or more persons of ‘unlawful assembly’ acting in furtherance of common object) is not to be affected. It would apply to situations other than those contemplated by the present law.”
In view of the aforesaid it is observed that the recommendations of the law commission to curb the menace of khap panchayats in the form of the proposed law address the issue quite comprehensively.