The issue of honour killing grabbed headlines with the death of Nirupama Pathak, a Delhi-based journalist, who was alleged to have been killed by her family because she was pregnant and was planning to marry a person outside her caste.  This was followed by two more cases of suspected honour killing (see here and here) in the capital. While incidences of honour killing are a rarity in the capital, such incidences are common in the northern states of India such as Punjab, Haryana and Uttar Pradesh.  The basic reason behind honour killings is the idea that a family’s honour is tied to a woman’s chastity.  Thus, a wide range of causes can trigger honour killing such as marital infidelity, pre-marital sex, having unapproved relationships, refusing an arranged marriage or even rape. In India, honour killings take place if a couple marries outside their caste or religionKhap panchayats also oppose and mete out punishments to couples who marry within the same gotra (lineage) or transgress other societal norms.  A recent judgement by a sessions court in Karnal for the first time awarded the death penalty to five men for murdering a young couple who had married against the diktats of a khap panchayat.  It gave life sentence to a member of the khap panchayat who declared the marriage invalid and was present when the killing took place. On June 22, the Supreme Court issued a notice to the centre and eight states to explain the steps taken to prevent honour killing.  Taking a cautious approach the government rejected Law Minister, M. Veerappa Moily’s proposal to amend the Indian Penal Code and rein in the khap panchayats (caste based extra constitutional bodies).  It however decided to constitute a Group of Ministers to consult the states and look into the scope for enacting a special law that would treat honour killing as a social evil. Experts are divided over the proposed honour killing law.  Some experts argue that the existing laws are sufficient to deter honour killing, if implemented properly while others feel that more stringent and specific provisions are required to tackle the menace of honour killings.

Existing Penalties under Indian Penal Code:
  • Sections 299-304: Penalises any person guilty of murder and culpable homicide not amounting to murder.  The punishment for murder is life sentence or death and fine.  The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.
  • Section 307: Penalises attempt to murder with imprisonment for upto 10 years and a fine.  If a person is hurt, the penalty can extend to life imprisonment.
  • Section 308: Penalises attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both.  If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.
  • Section 120A and B: Penalises any person who is a party to a criminal conspiracy.
  • Sections 107-116: Penalises persons for abetment of offences including murder and culpable homicide.
  • Section 34 and 35: Penalises criminal acts done by several persons in furtherance of common intention.
Arguments favouring new law Arguments against new law
  • Making the crime of honour killing a separate offence would help bring more clarity for law enforcement agencies.
  • One of the proposals is to amend the Indian Evidence Act to put the burden of proof on the accused.  Thus, the khap panchayat or the family members would be responsible for proving their innocence.
  • There would be joint liability under the proposed new law.  The khap panchayat (or any group ordering honour killings) and the person who carries out the killing would be jointly liable for punishment.
  • The existing penalty for the offence of murder is sufficient if they are implemented strictly and effectively.
  • A new set of laws would not deter honour killings because the basic issue is social sanction for acts committed to curtail same gotra marriage, inter-caste marriage, inter-religion marriage.
  • Need for creating awareness among traditional communities through education.
  • Holding khap panchayats  collectively accountable can be detrimental to members who do not support such killing.  Also, it could be misused for vindictive agendas.
Sources: “Define honour killing as ‘heinous crime’: Experts”, Hindustan Times, May 12, 2010; “Legal experts divided over proposed honour killing law,” Indian Express, Feb 16, 2010; “Legal Tangle,” Indian Express, July 10, 2010; and “Honour Killing: Govt defers decision on Khap Bill,” Indian Express, July 8, 2010; “Honour Killing: Govt considers special law,” Indian Express, July 9, 2010.

Meanwhile, khap panchayats are up in arms defending their stance against same gotra marriage.  They have demanded an amendment to the Hindu Marriage Act, 1955 disallowing same gotra marriage.  While condemning honour killings, some politicians such as Naveen Jindal and Bhupinder Singh Hooda have extended support to the demands of the khap panchayats. It remains to be seen if India is effectively able to address this tug of war between tradition and modernity.

In a landmark judgment on April 12, 2012, the Supreme Court upheld the constitutional validity of the provision in the Right to Education Act, 2009 that makes it mandatory for all schools (government and private) except private, unaided minority schools to reserve 25% of their seats for children belonging to “weaker section and disadvantaged group”.  The verdict was given by a three-judge bench namely Justice S.H. Kapadia (CJI), Justice Swatanter Kumar and Justice K.S. Radhakrishnan.  However, the judgment was not unanimous.  Justice Radhakrishnan gave a dissenting view to the majority judgment. According to news reports (here and here), some school associations are planning to file review petitions against the Supreme Court order (under Article 137 of the Constitution, the Supreme Court may review any judgment or order made by it.  A review petition may be filed if there is (a) discovery of new evidence, (b) an error apparent on the face of the record, or (c) any other sufficient reason). In this post, we summarise the views of the judges. Background of the petition The 86th (Constitutional Amendment) Act, 2002 added Article 21A to the Constitution which makes it mandatory for the State to provide free and compulsory education to all children from the age of six to 14 years (fundamental right).  The Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 to give effect to this amendment. The Act provides that children between the ages of six and 14 years have the right to free and compulsory education in a neighbourhood school.  It also lays down the minimum norms that each school has to follow in order to get legal recognition.  The Act required government schools to provide free and compulsory education to all admitted children. Similarly, aided schools have to provide free and compulsory education proportionate to the funding received, subject to a minimum of 25%. However, controversy erupted over Section 12(1)(c) and (2) of the Act, which required private, unaided schools to admit at least 25% of students from SCs, STs, low-income and other disadvantaged or weaker groups.  The Act stated that these schools shall be reimbursed for either their tuition charge or the per-student expenditure in government schools, whichever is lower.  After the Act was notified on April 1, 2010, the Society for Unaided Private Schools of Rajasthan filed a writ petition challenging the constitutional validity of this provision on the ground that it impinged on their right to run educational institutions without government interference. Summary of the judgment Majority The Act is constitutionally valid and shall apply to (a) government controlled schools, (b) aided schools (including minority administered schools), and (c) unaided, non-minority schools.  The reasons are given below: First, Article 21A makes it obligatory on the State to provide free and compulsory education to all children between 6 and 14 years of age.  However, the manner in which the obligation shall be discharged is left to the State to determine by law.  Therefore, the State has the freedom to decide whether it shall fulfill its obligation through its own schools, aided schools or unaided schools.  The 2009 Act is “child centric” and not “institution centric”.  The main question was whether the Act violates Article 19(1)(g) which gives every citizen the right to practice a profession or carry out any occupation, trade or business.  However, the Constitution provides that Article 19(1)(g) may be circumscribed by Article 19(6), which allow reasonable restriction over this right in the interest of the general public.  The Court stated that since “education” is recognized as a charitable activity [see TMA Pai Foundation vs State of Karnataka (2002) 8 SCC 481] reasonable restriction may apply. Second, the Act places a burden on the State as well as parents/guardians to ensure that every child has the right to education.  Thus, the right to education “envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society.”  The private, unaided schools supplement the primary obligation of the State to provide for free and compulsory education to the specified category of students. Third, TMA Pai and P.A. Inamdar judgments hold that the right to establish and administer educational institutions fall within Article 19(1)(g).  It includes right to admit students and set up reasonable fee structure.  However, these principles were applied in the context of professional/higher education where merit and excellence have to be given due weightage.  This does not apply to a child seeking admission in Class I.  Also, Section 12(1)(c) of the Act seeks to remove financial obstacle.  Therefore, the 2009 Act should be read with Article 19(6) which provides for reasonable restriction on Article 19(1)(g).  However, the government should clarify the position with regard to boarding schools and orphanages. The Court also ruled that the 2009 Act shall not apply to unaided, minority schools since they are protected by Article 30(1) (all minorities have the right to establish and administer educational institutions of their choice).  This right of the minorities is not circumscribed by reasonable restriction as is the case under Article 19(1)(g). Dissenting judgment Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years.  The obligation is not on unaided non-minority and minority educational institutions.  Section 12(1)(c) of the RTE Act can be operationalised only on the principles of voluntariness, autonomy and consensus for unaided schools and not on compulsion or threat of non-recognition.  The reasons for such a judgment are given below: First, Article 21A says that the “State shall provide” not “provide for”.  Therefore, the constitutional obligation is on the State and not on non-state actors to provide free and compulsory education to a specified category of children.  Also, under Article 51A(k) of the Constitution, parents or guardians have a duty to provide opportunities for education to their children but not a constitutional obligation. Second, each citizen has the fundamental right to establish and run an educational institution “investing his own capital” under Article 19(1)(g).  This right can be curtailed in the interest of the general public by imposing reasonable restrictions.  Citizens do not have any constitutional obligation to start an educational institution.  Therefore, according to judgments of TMA Pai and PA Inamdar, they do not have any constitutional obligation to share seats with the State or adhere to a fee structure determined by the State.  Compelling them to do so would amount to nationalization of seats and would constitute serious infringement on the autonomy of the institutions. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) can only be curtailed through a constitutional amendment (for example, insertion of Article 15(5) that allows reservation of seats in private educational institutions). Third, no distinction can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State. Other issues related to the 2009 Act Apart from the issue of reservation, the RTE Act raises other issues such as lack of accountability of government schools and lack of focus on learning outcomes even though a number of studies have pointed to low levels of learning among school children.  (For a detailed analysis, please see PRS Brief on the Bill).