COURT DIARY: PAPER III

CASE ANALYSIS
CASE NAME: SHAKTI VAHINI V. UNION OF INDIA
CASE NUMBER: Writ Petition (C) No. 231of 2010

COURT: Supreme Court of India

CITATION: (2018) 7 SCC 192; AIR 2018 SC 1601

PARTIES INVOLVED:
Appellant: Shakti Vahini, an organisation
Respondent:
Respondent No 1: Union of India
Respondent No 2: Ministry of Home Affairs
Respondent No 3: Ministry of Women & child Development

BENCH: Hon’ble Chief Justice Deepak Mishra, Justice A.M. Khanwilkar and Justice D.Y.
Chandrachud
DECIDED ON: MARCH 27, 2018

BACKGROUND

1. There has been a spate of honour killings in Haryana, Punjab and Western Uttar Pradesh.
This has made it all the more essential to look into and deal with this fundamental problem as
the existing law is not acting as a deterrent on the caste combinations and these illegal
assemblies who consider them outside the pale of law. Any attempt to effectively tackle this
socio-cultural phenomenon, embedded by superstition and authoritarianism, must look into
the nature and magnitude of the problem, the adequacy of existing law, and the usage of
penal and other measures of sanction to curb the power and conduct of caste combines. 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.”

2. To avert this, petitioner organization was authorized for conducting Research study on
Honour killings in Haryana and Western Uttar Pradesh dated 22/12/2009 passed by the
National Commission for Women.

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BRIEF FACTS
1. 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 honour 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 honour crimes and
embedded evil in the mindset of certain members of the society are dealt appropriately.
ISSUES

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

CONTENTIONS

Petitioner’s contention

A) The actions which are found to be linked with honour 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 day light 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 totally oblivious of the law of the land and absolutely 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 hapless 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 honour
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 to
commit such crimes which are offences under the Indian Penal Code.

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

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Respondent’s Contention

A) 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

B) 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 this menace.

C) Since the matter of the 242nd law commission report falls under list 3 i.e. Concurrent list of the
seventh schedule to the Constitution of India, consultation with the governments of the states and
UTs 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 effectively implement the same in letter and spirit.

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

JUDGEMENT
1. Hon’ble Justice Dipak Misra in his judgment quoted some lines of French philosopher and
thinker, Simone Weil which are:

“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. Former CJI Dipak Misra has also quoted the important extracts of the 242nd Report of Law
Commission which concludes the scenario of “Honour Killing” or “Honour Crimes”. The
draft bill recommended by the commission refers to ‘Khap Panchayat” and this term includes
any person or group who gathers, assembles or congregates with an intention to condemn any
marriage. Further, various significant cases have been highlighted which includes Lata Singh
v. State of U.P. and Another[1], in which writ of certiorari/ mandamus was allowed to give
protection to the petitioner and her husband who were under constant danger of “Honour
Killing”. Few lines from the judgment in the case Asha Ranjan v. State of Bihar[2] “the
choice of a woman in choosing her partner in life is a legitimate constitutional right. It is
founded on the 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”.
Further, In the State of U.P. v. Krishna Master[3], the accused convicted of “Honour Killing”
were given rigorous imprisonment for life and a fine of Rs. 25,000/- was imposed on them.

3. The court in this case observed that, “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”. The major argument on behalf of the counsel of
“Khap Panchayat” that this body is playing an important role of spreading awareness about

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the prohibition of ‘sapinda’ and ‘sagotra’ marriages was rejected by the court by stating that
in case of recognition of matrimonial status, the parties can approach court and law shall take
note of it. Moreover, the Court has provided preventive, remedial and punitive measures to
construct a strong mechanism that could spot and punish the supporters of “Honour Killing”
and directed the states to carry out these instructions within 6 weeks.

CASE COMMENT

1. 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.
2. 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.
3. 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.
4. 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

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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.
5. 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.
6. 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.
7. 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.

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