Right to choose life partner: Fundamental right

Introduction

Right to choose own life partner is a Fundamental right, held in a writ petition of Shakti Vahini v. Union of India. The judgment is expressing  the “malaise” of honour killing emerged from “deeply entrenched” belief in caste system. Honour killing is homicide of family members, in a belief that victim has bought dishonor to the family. Also perceptions of violating the principle of a community is also a factor. The ability to choose a partner, crushed in a name of honour of community or clan and treated with indignity.

The petitioner-organization has conducted Research study on honour killing in various states. Deeply entrenched by the malaise, petitioner prayed to issue mandamus to state government to launch prosecution in such cases. Appropriate measures has been arise to combat such crimes and evil mindset of certain members of society with iron hands.

“The social pressure and consequent inhuman treatment by the groups who arrogate themselves with the position of law makers and impose punishments which are extremely cruel instill immerse the fear to commit suicide or to suffer irreparably at the hands of these groups.”

The egoism of such group results in the violation of human rights and fundamental rights of a person. This take place in the name of honour or rights of a group preserved through the perception of individuals.

KHAP PANCHAYATS-

A Khap is an organisation which represents a clan or group of related clans.  A Khap Panchayat is the assembly of  these Khap elders. These Khaps are not formally electable government body but they exert significant affairs of the Khap, it represents.

Court further elucidating about Khap panchayats, explained that such group, themselves,  have nurtured the feeling of sanctification of punishing victims. Court further discouraged them as extra- constitutional bodies, engaged in feudalistic activities and commit crimes under Indian penal code.

“Article 21, protection of life and liberty, guards basic human right and equality of status has been unceremoniously disrespected by these panchayat, without the slightest pangs of conscience, subscribe to honour killing” said the court.

The informal institutions for delivery of the justice is not acceptable under the eyes of law. Since “Rule of Law” accepts the determination of rights and violation only by formal institutions. Hence, Khan panchayat cannot create a dent in the exercise of the said right.

Further, court rejected the submission of panchayats,  committed to spread awareness of permissibility of inter-community and inter-caste marriage. Also, how “Sapinda” and “Sagotra” marriages have no sanction of law. To this, court condemned as an act abhorrent to law and asked to stop in entirety.

Consent of family for marriage-

On this court pronounced, consent of clan or family or community is immaterial to enter into a wedlock.  “The consent of couple will be piously get primacy”.

“The choice of an individual is inextricable part of dignity which cannot be interfered in the fructification of said choice. 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. Such infringement and obstruction is, unequivocally, constitutional violation. Extra-constitutional perceptions of the community has to be melted into oblivion paving for smooth path of liberty.” 

Right to choose life partner: Fundamental right

Court emphasized: “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 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”

Issued directives by bench-

Preventive steps-

1. State government should identify the area of instances of honour killing or assembly of Khap panchayats,  in last five years.
2. Home department secretary shall issue directives/ advisories to S.P.  of concerned area for the officer Incharge of police station. Hence, asked to be extra cautious on the incident of inter-caste or inter-religious marriages within their jurisdiction.
3. Information about gathering of Khap panchayat needs to be submit to immediate superior officer and D.S.P.  and S.P.
4. On receiving such information, D.S.P. shall make interaction with members of panchayat. Also, he will impress that convening  of such meetings is not permissible in law. Directions  given to be vigilant and deploy adequate officers for prevention of assembly.
5. If meeting is in conduction, D.S.P. shall personally remain present and impress that no decision will prioritise to harm couple or family of the couple. Failing in this, organizers will be personally liable for criminal prosecution.
6. If, Deputy Superintendent of Police, after interaction with members, has reason to believe that such gathering would cause harm to the members, he shall submit the proposal to the District/ competent authority. Also, preventive steps will be there under Cr.P.C. , including by invoking prohibitory order under section 144 Cr.P.C. Also he can arrest the participants under section 151 Cr.P.C.
7. There should be an institutional machinery with the necessary coordination of all the stakeholders. State Governments and the Center ought to work on sensitization of the law enforcement to mandate social initiatives and awareness.

Remedial measures-

1. Despite of preventive measure taken by police, khap panchayats manages to take any action against the couple or family of couple, whose marriage does not meet the acceptance, jurisdictional person shall lodge an F.I.R. under Indian penal code including section 141, 143, 503 and 506.
2. Immediate steps of providing security to the victims and shifting to a safe house, will be there, taking care of the safety and threat. The State Government may consider of establishing a safe house at each District Headquarter for that purpose.
3. 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 provide logistical support for solemnizing their marriage and/or for being duly registering under police protection, if they so desire. After the marriage, if required, they can be provided accommodation on nominal charges in the safe house initially for one month but not exceeding one year.
4. Superintendent of Police shall, either himself or through an officer of rank not less than Additional Superintendent of Police, conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfactory as to the authenticity of such threats, he shall immediately submit a report in not later than one week.
5. The Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is complete and took to its logical end with promptitude. In the course of investigation, the concerned persons shall be book without any exception including the members participated in the assembly.

Punitive measure-

1. Any failure by either the police or district officer to comply directions, shall be an act of deliberate negligence and/or misconduct. This would result in departmental action that will be there under the service rules. The departmental action shall start and there to its logical end, not exceeding six months, by the authorities.
2. The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Welfare Officer. This cell will receive petitions/complaints of harassment of and threat to inter-caste marriage.
3. Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance and protection to the couple. The criminal cases pertaining to honour killing or violence to the couple(s) shall be put before the designated Court/Fast Track Court earmarking for that purpose.

DO READ – AGRICULTURE CRISES IN INDIA:  AN OVERVIEW

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