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Report No. 242

4. Autonomy of choices and libert.- a value to be protected.

4.1 The autonomy of every person in matters concerning onesel.- a free and willing creator of one's own choices and decisions, is now central to all thinking on community order and organization. Needless to emphasize that such autonomy with its manifold dimensions is a constitutionally protected value and is central to an open society and civilized order. Duly secured individual autonomy, exercised on informed understanding of the values integral to one's well being is deeply connected to a free social order. Coercion against individual autonomy will then become least necessary.

4.2 In moments and periods of social transition, the tensions between individual freedom and past social practices become focal points of the community's ability to contemplate and provide for least hurting or painful solutions. The wisdom or wrongness of certain community perspectives and practices, their intrinsic impact on liberty, autonomy and self-worth, as well as the parents' concern over impulsive and unreflective choice.- all these factors come to the fore-front of consideration.

4.3 The problem, however, is the menacing phenomena of repressive social practices in the name of honor triggering violent reaction from the influential members of community who are blind to individual autonomy. How best to tackle it is the question. In this context, the instrumentalist role of law to grapple with such situations assumes importance. The thought behind the proposals in this report is to bring to greater focus on the conduct which endangers life and liberty and to highlight the civilizing perceptions on liberty and autonomy.

4.4 Social protection has consistently been the paramount goal of modern criminal law. Criminal punishment typically achieves such protection through its capacity to motivate people to conform to socially acceptable rules of behaviour with threats of serious penalties for non-conformity. "Punishment serves as a weapon which society uses to prevent conduct which harms or threatens to harm its interests"1 The largest social interests or community values cannot be judged by a handful of influential persons whose beliefs are grounded in superstition and dogmas totally opposed to constitution and the laws.

1. See the Article "A more Principled approach to Criminalizing negligence: A Prescription for Legislature" by Garfield, Leshie Yalof, Associate Professor, Pace University School of Law (1998).

4.5 The self-styled Panchayats or assembly of people constitute a close knit section of people bonded by certain common perspectives and values. Caste plays a pivotal role in this bondage. Having regard to the hegemony and the social or political power available to these Panchayats, their dictates on questions of caste relationships, matrimony etc. are formidable. Different caste groups have their own combinations.

While these assembly of people may be playing some role in protecting certain basic cultural mores, their deviant role in subjecting to peril the life and liberty of persons who do not conform to their views and values cannot be condoned and it needs to be directly tackled and necessarily subjected to the disciplines of law. It would be unwise and socially incorrect to leave life and liberty of vulnerable people, at the mercies of dominant and authoritarian caste councils and such other groups whose commands and decisions cannot be easily ignored by the family and community members.

The law should aim at counteracting the misdirected power and domineering position of the caste / Community Panchayats in so far as they act as centers of coercion and intimidation. Regard and respect for life, liberty and autonomy of persons need to be the larger focus and the perceived strength of such assemblies or combinations will have to be appropriately dealt with by law.

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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