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Report No. 242

Draft Legislation (enclosed)

7. The idea underlying the aforesaid provisions is that there must be a threshold bar against congregation or assembly for the purpose of discussing on and objecting to the conduct of young persons of marriageable age marrying according to their choice, the ground of objection being that they belong to the same gotra or to different castes or communities.

The Panchayatdars or caste elders have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law and they cannot create a situation whereby such couples are placed in a hostile environment in the village/locality concerned and exposed to the risk of safety. Such highhanded acts have a tendency to create social tensions and disharmony too.

No frame of mind or belief based on social hierarchy can claim immunity from social control and regulation, in so far as such beliefs manifest themselves as agents of enforcement of right and wrong. The very assembly for an unlawful purpose viz. disapproving the marriage which is otherwise within the bounds of law and taking consequential action should be treated as an offence as it has the potential to endanger the lives and liberties of individuals concerned.(Italic part has been added by Hon'ble Chairman)

8. The proposed law is not in derogation of the provisions of Indian Penal Code which can take care of various offences of serious nature perpetrated by the members of caste panchayats in prosecution of their unlawful objective.

9. The Commission is prima facie of the view that there is no need for introducing a provision in Section 300 IPC in order to bring the so-called 'honour killings' within the ambit of this provision. The existing provisions in IPC are adequate enough to take care of the situations leading to overt acts of killing or causing bodily harm to the targeted person who allegedly undermined the honour of the caste or community.

The motive behind killing a person does not furnish real justification to introduce a separate provision in section 300, as is contemplated to be done under the proposed Bill (as published in the newspapers). Probably, the addition of such clause may create confusion and interpretational difficulties.

10. Further, shifting the onus on to the accused facing accusations of involvement in the serious offence of murder etc or abetment thereof is not desirable. Such a move will be against the cardinal principles of jurisprudence accepted and absorbed into our criminal justice system. If burden of proof has to be shifted in such a case, logically, it will have to be done in a large number of other heinous crimes. A holistic approach is called for and any attempt to drastically expand the rigour of criminal procedure to cope up with ad hoc situations may be counter-productive.

The introduction of such a drastic provision needs to be avoided. As an alternative to this, the Commission is of the prima facie view that a presumption could be raised in respect of commission of the prohibited acts in clauses 3 and 4 of the proposed Bill, if he or she is a member of an unlawful assembly convened for the purpose of discussing and condemning the perfectly legal conduct of a young coupl.- married or intending to marry.

This is necessary having regard to the fact that the task of identification of roles that may be played by one or more members of assembly, is difficult to accomplish as the eyewitnesses may not be willing to depose and the circumstantial evidence will not be strong enough to implicate the guilty. In such a situation, the presumption as envisaged by clause 6 will assume a significant role.

11. In this context, the Commission feels that the analogy sought to be drawn from the provisions of the Commission of Sati (Prevention) Act, 1987 is not appropriate for more than one reason. 'Sati' is a barbaric, deeply entrenched social evil which was prevalent in certain parts of the country. The magnitude and seriousness of that evil cannot be compared to the problem on hand. More important, the offence of 'Sati' always remained an open affair with all the rituals and ceremonies attached to it and the persons actively participating therein could be identified without difficulty. The accusations in such cases are based on solid evidence.

The Law Commission of India would like to receive responses to this Paper preferably within 4 weeks which can be sent post or email at lcidla@ nic.in.

The website of Commission http://lawcommissionofindia.nic.in Postal Address: LAW COMMISSION OF INDIA, 2nd Floor, The Indian Law Institute Building (Opp. Supreme Court), Bhagwandas Road, New Delh.-110 001 Fax: 23383564



Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition) - A Suggested Legal Framework Back




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