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Report No. 242

3. Salient features of the proposed Bill

3.1 We may broadly indicate the general lay-out and the main features of the proposed legislation. Given the fact that the powerful influence of the caste or community Panchayats and the aggressive role played by them in controlling the freedom of choice of the marrying couple is the root cause of honour related crimes, there must be a check on such unwarranted interference by the members of Panchayats. The couple marrying against the wishes of members of the bodies like khap panchayats ought not to be driven to a state of insecurity and misery.

Their life and liberty is 'endangered' because they are exposed to threats and socio-economic deprivations. The close family members of the couple are also brought into the picture to enforce the diktats of such informal body of panchayats / councils. This is directly affecting the community and the family life in the villages, thereby posing a threat to social order and peace. As there is a need to divest the panchayatdars or caste 'elders' of their self assumed hegemony and controlling influence in these matters, this Bill has been thought of, on balancing various considerations.

It is proposed that there should be a threshold bar against the congregation or assembly for the purpose of disapproving an intended marriage or the conduct of the young couple and this objectionable conduct of the panchayatdars should be brought within the purview of penal law. A preventive provision prohibiting such assemblies and penalizing the participation in such assemblies has also been introduced.

3.2 Having rendered the convening and conduct of such assemblies unlawful and punishable under law, consequential penal provisions dealing with offences committed in relation thereto have been proposed. Two sections are proposed to be introduced, i.e., Section 3, which makes punishable the acts endangering liberty, which are also particularized in the Section. The other Section, i.e., Section 4 would deal with criminal intimidation by the members of unlawful assembly or others to secure compliance with the illegal decision of the assembly.

Such acts of criminal intimidation which are punishable under the general law, i.e., the Indian Penal Code have been specifically introduced for the purpose of meting out higher punishment to those members of unlawful assembly. The other penal provisions and the situations referred to above are not taken care of nor covered by the provisions of Penal Code. At any rate, there is a room for doubt as regards the invocation of the provisions of IPC.

However, the criminal acts other than those falling under the three penal provisions of the Act can still be dealt with under the provisions of the Penal Code including the provisions relating to abetment and conspiracy. For instance, if a persons who is a party to the unlawful assembly has committed or abetted the commission of an offence of grievous hurt against the targeted couple or one of them or their relatives, the IPC provisions will be attracted.

That is why Section 5 has been introduced to make it clear that the provisions of Sections 2, 3, and 4 of the proposed Bill are without prejudice to the provisions of IPC. In order to have sufficient deterrent effect, mandatory minimum punishments have been prescribed while taking care to see that such punishment has an element of proportionality.

Apart from these penal provisions, a specific section has been proposed to empower the District Magistrate or the SDM to take preventive measures and a further obligation is cast on them to take note of the information laid before them by the marrying couple or their family members and to extend necessary protection to them.

The officials are made accountable for the failure or omission on their part to take necessary steps to prevent unlawful assembly (caste panchayats, etc.) or to give protection to the targeted couple. It has been provided that the offences shall be tried by a Court of Sessions in the District presided over by the Sessions Judge or Additional Sessions Judge as notified by the High Court. The need for constitution of special courts can be reviewed at a later stage. The offences are cognizable, non-bailable and non-compoundable.

3.3 The overlapping with the provisions of IPC has been, as far as possible, avoided. Though, at first look, it may appear that the offence of unlawful assembly is nothing other than what we find in Section 141 of IPC, it needs to be pointed out that the unlawful assembly of the kind contemplated by the proposed Bill does not strictly fall within the scope of the said section. The ingredients of 'unlawful assembly' under the Indian Penal Code and the unlawful assembly contemplated by Section 2 of the proposed Bill are not the same.

Moreover, a punishment higher than that prescribed for unlawful assembly under IPC has been prescribed under Section 2. As regards Section 4 dealing with criminal intimidation, as already clarified, this Section has been introduced with a view to provide for higher punishment in the case of acts of criminal intimidation by the members of unlawful assembly within the meaning of this Bill. Thus, the provisions of the proposed Bill coupled with those in IPC would, it is hoped, be effectively able to combat the menacing trend of dastardly actions and drastic social sanctions directed against the hapless young couple and their families.

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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