Report No. 242
7. Honour Crimes Bill: Responses and suggestions
7.1 As already stated, the Commission received responses from some State Governments, Law Universities and others. The list of persons / organizations from whom responses have been received are given in Annexure III. The Commission appreciates the effort of West Bengal National University of Juridical Sciences in presenting a critical analysis of the provisions of the proposed Bill and putting forward important suggestions.
The Commission has also looked into the suggestions of Faculty of Amity Law School, Noida. None of the responses have opposed in principle, the Commission's proposed recommendations and the draft Bill. Some of those suggestions have been considered and changes to the extent considered appropriate have been made in the draft Bill.
7.2 One major suggestion is that relationships akin to marriage not prohibited by law should also be included in the meaning of the word 'marriage' occurring in clause 2 of the draft Bill. This means that live-in relationships should also be included and the protection of the law secured for persons in such relationships. While on first flush, this suggestion may deserve acceptance, it is felt that bringing such relationship within the scope of this law may unduly dilute its efficacy and is likely to meet with resistance/and disapproval from various quarters and dimensions.
As of now, the marriage laws of our country do not cognize live-in relationships as a form of marriage. Unless a substantive law in the realm of marriage deals with that question comprehensively, it is not advisable at this point of time to bring in such relationships within the scope of the proposed law, whose object is to strike at the root of unwarranted interference of village assemblies even in relation to perfectly legal marriages and to generate important social perspectives on liberty rights and autonomy of individuals.
Another suggestion is that forced marriages at the instance of family members should also be brought within the net of the proposed law. The problem of forced marriages has a different dimension as the members of khap panchayats and the like do not come into the picture there.
They can be effectively taken care of within the ambit of general penal law and Child Marriages (Prohibition) Act. Further, it is felt that by enlarging the scope of the proposed law to include offensive conduct of individual family members / relatives, the integrity of the proposed law will be lost in so far as it aims to replace or substitute the entire corpus of existing criminal law on the subject.
7.3 Another comment that the criminalization of the acts of groups and focus on punishment by itself will not be able to abate the mischief and the prevention / protection aspects should also receive due consideration. However, it may be seen that the proposed Bill as recast deals with all these aspects Reining in the high-handed acts of caste assemblies within the pale of penal law with emphasis on deterrent element is a desideratum that needs to be given due priority to combat the existing evil.
7.4 The National Commission for Women has drafted a Bill titled "Prevention of Crimes in the name of Honour and Tradition". The Bill is closer in thinking to the law proposed by the Law Commission. It suggests certain prohibitive and penal measures. It provides for recording of declaration of an intended marriage by the couple concerned as a means of seeking protection apart from penalizing the acts of harassment etc. caused to the woman or her partner.
However it misses the necessity and desirability of the focus on directly dealing with unlawful assemblies and their vicious influences. Further, the offences under general law are also included in the said Bill. But, certain aspects contained in that Bill have been usefully incorporated in the proposed law.
7.5 The Government of National Capital Territory of Delhi through its Department of Home, has forwarded the comments of an officer of the Law Department. The main point highlighted is that since the subject of unlawful assembly stands covered by Section 141 of the Indian Penal Code and Section 506 I.P.C provides for criminal intimidation, there is no need for the proposed law. It further says that necessary amendments to the Code of Criminal Procedure should take care of the situation. These views have been examined.
In fact, they have been considered and kept in mind while drafting the proposed law. Section 141 I.P.C. fifth clause alone has some resemblance to the subject on hand. However, the thrust of that clause is the conduct of subjectin.-"any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do". It is doubtful whether the unlawful assembly of the nature contemplated by the proposed Bill is covered under Section 141.
That apart, the proposed law intends to deal with the conduct of local bodies or caste assemblies and to strike at the blind fury of such associations acting in disregard of liberty of persons. A special class of unlawful assembly with a different punishment is, therefore, suggested as a measure of greater efficacy. In any event, Section 149 I.P.C. read with Section 141 (which envisages five or more persons of 'unlawful assembly' acting in furtherance of common object) is not to be affected.
It would apply to situations other than those contemplated by the present law. Further, the above view failed to perceive the shift in perspectives and the need to intensify the focus, as already stated, to act in promotion of liberty and its contours. The Commission is unable to share the view that the amendments to Cr.P.C. would be able to serve the intended purpose of the proposed law.
7.6 The other response has come from the Government of Odisha (Law Department). According to this opinion, some overlap between Section 141 and 149 I.P.C. and the proposed law is seen. This misconception is again rooted in the conceptual misgivings. It must be seen that the provisions of this Act coupled with those in IPC can be simultaneously worked in some areas and they can be complementary to each other. Care has also been taken to see that the offence dealt with under general criminal law are not, as far as possible, brought within the purview of the proposed law.
It has been made clear that the provisions of this law are not in derogation of those in IPC, but will be in addition thereof. However, the Commission would like to clarify that bringing the offence of criminal intimidation into the gamut of this law is to prescribe more severe punishment. The Commission is of the view that instead of adding the same provision in IPC, it is better that this stand alone law dealing with honour crimes should contain such provision.
7.7 One more response has come from the Law Department of Government of Madhya Pradesh. Apart from suggesting the increase of length of imprisonment, it has been suggested that the 'pardon' shall be granted to an accused who is willing to depose as prosecution witness so that there would be better scope for conviction.