The recent conviction of caste panchayat leaders in Haryana who killed a young couple for marrying within their gotra is historic. But the knee-jerk reaction of calling for new laws on ‘honour killings’ will not help, says Supreme Court advocate Rakesh Shukla
The first ever conviction in March 2010 by a local court in Haryana of khap (caste panchayat) leader Ganga Raj and five others for the killing of Manoj and Babli in 2007 is an historic decision. The rock-like courage, bravery and perseverance of Manoj’s mother Chandrapati, amidst continuing threats and ostracisation stands out in the deafening silence of the region’s politicians.
Khap panchayats have with impunity been giving verdicts in the case of same-gotra marriages, leading to the killing of a number of couples and the intimidation, harassment and hounding of scores of families.
Along with the conviction, the strong stand taken by the chief justice of the Punjab and Haryana High Court, who has asked government why khap panchayats cannot be declared ‘unlawful organisations’, may just make a dent in the bizarre scenario of parallel bodies pronouncing verdicts based on their notions of right and wrong, affecting the life and liberty of individuals.
However, the award of a death penalty, reminiscent of ‘an-eye-for-an-eye’ notions of justice, could have been avoided and may well exacerbate the polarised situation. Sensational headlines like ‘Death Blow for Medieval Justice’ apart, the capital punishment awarded could feed into the Jat community leaders’ feeling of being ‘wronged’.
“Marrying within the same gotra is tantamount to incest and goes against the concept of bhaichaara — a centuries-old belief in brotherly ties amongst those from the same gotra.” These are the words not of a khap panchayat leader but of Justice D S Tewatia, ex-chief justice of the Calcutta High Court and ex-chief justice of the Punjab and Haryana High Court. Justice Tewatia is currently assisting the community in drawing up a proposal to amend the Hindu Marriage Act to reflect Jat sensibilities. The proposal aims to debar marriages within the father’s and mother’s gotra.
Incest is a strong taboo in almost all societies. The Hindu Marriage Act codifies the taboo and bars marriage between sapindas — people within the third generation in the line of ascent through the mother, and fifth generation in the line of ascent through the father. It also bars marriage between certain ‘degrees of prohibited relationships’, including brother and sister. The law thus clearly spells out the ingredients of a valid marriage, and excludes marriage between close relatives. The belief that persons from the same gotra are siblings and should not marry has no rational basis. Yet, marriage between persons from the same gotra seems to evoke moral indignation, fury and rage — enough to warrant brutal killings.
At the other end of the spectrum is the knee-jerk reaction to rush into making a new strict law with regard to ‘honour killings’, and bring about changes in the law of evidence. It is proposed that a clause be added to Section 300 of the Indian Penal Code (IPC) that defines murder. A person or group acting in concert with anybody else to cause the death of any person in the belief that he/she had brought dishonour to the family or clan or community or caste will be said to have committed murder. ‘Dishonour’ includes acts such as adopting a dress code, marrying against the wishes of the family, clan, community or caste, or engaging in sexual acts unacceptable to such people. An amendment to the Evidence Act proposes to put the burden of proof on the accused, thereby making them responsible for proving their innocence in the event of a death taking place due to their actions.
Often, after a horrendous incident takes place, there is popular demand to bring in a strict law or the death penalty for the offence. At various times there have been demands for capital punishment for rape, sati, ‘terrorism’ and the selling of drugs. This demand has to be kept in perspective, as a reflection of public anger at the heinousness of the crime; it cannot form the basis of substantive changes in the law. Studies of crime and punishment consistently show that it is not the severity but the certainty of punishment that acts as a deterrent. Speedy trial is the other major deterrent. Delayed punishment neither serves the purpose of deterrence nor offers much solace to the victims/survivorsThe words of Pinki Sood who lost her husband in the 1996 Lajpat Nagar blasts, with respect to the recent conviction of six persons, make a valid point: “Justice has no meaning if it takes 14 years.”
It is best to define criminal offences precisely, with the ingredients spelled out. Vaguely worded offences, as in some anti-terrorism legislations, leave room for arbitrariness. The definition of ‘murder’ in the IPC is precise and has withstood the test of time. The penal code provides for persons or groups acting in concert, with the help of a shared ‘common intention’ and ‘criminal conspiracy’ to commit an offence. There are innumerable instances of conviction of a group of persons for murder, with the aid of these provisions. In fact, the present conviction of khap panchayat leader Ganga Raj for murder is a case in point.
The reasons for non-prosecution and conviction may not lie in the definition of murder. It could well be that the police and their political masters share the belief of patriarchs of the community with regard to social norms and transgressions. It is fairly clear that information about Manoj and Babli’s movements was provided to their killers by the very policemen who were deputed to protect them.
Coming to proposed changes in the evidence law, it has to be kept in mind that at the heart of Anglo-Saxon jurisprudence, which is the basis of our legal system, is the ‘presumption of innocence’ of an accused person. The amendment that proposes to shift the burden of proof onto the accused has to be seen in this context. It is dangerous to tinker with the onus of proof placed on the prosecution to establish the case, and could open up a Pandora’s box.
Strong protests following the acquittal of policemen in the Mathura rape case in the 1980s led to limited changes in the law of evidence. A new section was introduced in the Evidence Act titled ‘Presumption as to absence of consent in certain prosecutions for rape’. The presumption does not seem to have led to an increase in convictions. Possibly the belief that lack of injuries on the body of the survivor and/or the accused indicates consent on the part of the woman continues to colour the law’s working. However, the absence of consent presumption for rape seems to have opened the way to the introduction of presumptions and a shift in the burden of proof onto the accused in legislations like the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA), contributing to their large-scale use as tools to target selected sections or communities in society.
There is not much doubt that a sizeable section of the Jat community believes that people marrying within the same gotra deserve to be killed. Even after the conviction, khap leaders have been quoted as saying that parents of children marrying within the gotra should quietly kill their children and save respectable villagers from taking such steps that lead to murder. We must keep in mind the complex dialectical interplay of law and society, legal and social norms rather than rushing to change the law regarding murder, or shifting the burden of proof under the law of evidence.
