Day: March 29, 2018

SC Holds Khap Interference In Marriage Of Adults Illegal

It has to be stated at the very outset that the Supreme Court has rendered a landmark judgment in the case of Shakti Vahini v Union of India and others on March 27, 2018 whereby it held that the right of adult individuals to choose their life partners was above class honour and that it was illegal for khap panchayats to summon and punish couples for this! The Apex Court categorically ruled that any attempt by khap panchayats or any other assembly to scuttle or prevent two consenting adults from marrying is absolutely “illegal”. It also ordered that such activities of khap panchayats “are to be stopped in entirety” and called upon Parliament to come up with a suitable legislation. It also laid down “preventive, remedial and punitive” measures.
                          To put things in perspective, while delivering a landmark judgment in the PIL filed by NGO Shakti Vahini in 2010 on the issue, a Bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud also laid down a slew of measures to protect inter-faith and inter-caste marriages generally objected to by the khap panchayats. It ordered authorities to take steps to protect inter-caste and inter-religious couples from honour crimes. The NGO had sought directions to state governments and the Centre to take preventive steps to combat honour crimes.
                                           It is noteworthy that the NGO Shakti Vahini pointed out that at least 288 such cases of honour crimes were reported from Haryana, Punjab, Himachal, Delhi, UP, Bihar and other states between 2014 and 2016. CJI Dipak Misra while reading out the operative part of the judgment said that, “These remedial, preventive and punitive measures will hold field till the legislature brings in a law”. There can be no denying it.
                              It may be recalled that on February 5, during the hearing the Bench said that when two consenting adults agree to enter into matrimony no individual, group or collective rights shall interfere to harass the couple. It had asked the Khaps or Indian Kangaroo courts not to behave like the conscience keeper of society, pointing out that a marriage between two adults was governed by the law. The court had said that it would set up a high-level committee consisting of senior police officers to deal with issues relating to intervention in marriages by bodies such as khap panchayats.   
                                 As things stand, a Bench of CJI Dipak Misra and Justices DY Chandrachud and AM Khanwilkar while disposing of a petition filed by NGO Shakti Vahini in 2010 sent out a very loud and firm message that, “Honour killing guillotines individual liberty, freedom of choice and one’s own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived on some notion that remotely does not have any legitimacy.”
                                        It also must be brought out here that the Apex Court while issuing a slew of directions had asked central and state governments to take preventive, remedial and punitive steps from taking the law into their own hands. It was directed that they must provide protection to inter-caste and inter-religious couples. It was also directed that the police chief in each district should oversee the safety of such couples and take the assistance of the court to make preventive arrests to save them from harassment. In addition, it was also directed that there should be dedicated courts to deal with honour crimes and 24-hour helplines for couples to seek assistance. It was also held that the ruling will hold till a law is passed on dealing with honour crimes.
                                        Simply put, as a first step, the Bench headed by CJI Dipak Misra directed all States to compile data of such districts/sub-districts and villages where honour crimes occurred or khap panchayats assembled in the last five years. Based on this information, 24-hour special cells will be established in such district headquarters to receive complaints from aggrieved couples facing threats from khap panchayats or such other group of persons.
                                    Moving ahead, the Bench also directed that an officer of the rank of Deputy Superintendent of Police shall conduct a preliminary enquiry into such complaints within a week and report to the SP. If the involvement of the members of khap panchayats is found, they will also be charged for the offence of conspiracy or abetment. These district headquarters will also have a safe house to provide shelter to the runaway couple. They will be given protection by the State police, who may even provide logistical support for their marriage under police protection and allow them to stay at the safe house for a period ranging from one month to one year.
                                   Strictly speaking, the Apex Court took both State and police to task by directing that despite complaint, if a honour crime takes place, the concerned police officer will be departmentally proceeded with and punished within six months. Meanwhile, trial in such crimes shall also conclude in six months. This is, in fact,  the crying need of the hour also!
                                           While condemning the honour crimes which can have no justification under any circumstances, the Supreme Court also held that, “The human rights of a daughter, brother, sister or son are not mortgaged to the so-called or so-understood honour of the family or clan or the collective. The act of honour killing puts the rule of law in a catastrophic crisis…class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution…the old order has to give way to the new. Feudal perception has to melt into oblivion paving the smooth path for liberty.” The Bench also added that, “There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing.” Without wasting any more precious time, the government must promptly act and usher in a law to appositely cover the field of honour killing as the top court has directed so explicitly!
                                          Needless to say, while stating that khap panchayats or any other institution had no space in deciding consent in marriages, the Apex Court said that, “…the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their consent has to be piously given primacy. If there is offence committed by one because of some penal law, that has to be decided as per law which is called determination of criminality. It does not recognize any space for informal institutions for delivery of justice.” In other words, the Apex Court has not left even an iota of doubt that it attaches prime importance to the consent of the two adult individuals to enter into a wedlock and not to the consent of the family or community or clan! Absolutely right!
                                        Truth be told, the Supreme Court Bench also send a loud and warning message to self-appointed guardians of society and khap panchayats by firmly directing that any kind of torture or torment or ill treatment by any assembly in the name of honour that curtails the choice of individuals relating to love and marriage “is illegal and cannot be allowed a moment of existence” and also warned that, “Khap panchayats or such assembly should not take the law into their hands.” Supreme Court’s remarks had come when a counsel representing a khap panchayats said that it had been encouraging inter-caste and inter-faith marriages and referred to provisions of the Hindu Marriage Act which prohibit a union between ‘sapinda’ relationships or close blood relatives among Hindus. What particularly irked the court was that the lawyer said that the khap had been performing its duties as the conscience keeper of society.    
                                       Without mincing any words, the Apex Court held that, “We are on a very fundamental issue. The marriage is between two adults and it is their choice. You cannot take the law into your own hands. Khaps had no business in such matters.” Referring to several judgments including the one passed in the sensational Nitish Katara murder case, the Apex Court had said that, “When two persons marry, if they are adults, the matter ends”. The Bench made it clear that whether a marriage was null or void or illegal could be decided by the court under the law. Very rightly said!
                                          Curiously enough, the Centre too had pleaded with the Apex Court to put in place a mechanism to monitor crimes against women by khap panchayats saying that the police was not able to protect such women. The top court had also said that as a pilot project, it would examine the situation in three districts of Haryana and Uttar Pradesh where khap panchayats were active. The Apex Court, however, rejected the arguments by the khap panchayats that they were trying to advance awareness on same gotra marriages and maintaining sex ratio. Also, the Apex Court while coming down heavily on khap panchayats minced no words in stating most unambiguously that, “They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But by putting forth a stand that they are spreading awareness, they really can neither affect others fundamental rights nor cover up their own illegal acts….Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.”
                                      Going forward, on the argument by khap panchayats that it was a “misnomer” to call them by that name, the order said that, “The nomenclature is absolutely irrelevant. What is really significant is that the assembly of certain core groups meet, summon and forcefully ensure the presence of the couple and the family members and then adjudicate and impose punishment.” It must be mentioned here that the Apex Court had invited khap panchayats to hear their views before issuing an order to stop them from harassing or killing couples purportedly to protect the honour of a family, caste, community or faith.
                                      It must be also added here that the Apex Court directed that at the receipt of a complaint that a khap panchayat is to assemble, the Deputy Superintendent of Police shall try to dissuade such a meeting and if they persist, the officer shall be personally present during the meeting and even videograph the proceedings for future action. He may then submit a report to the District Magistrate/Sub Divisional Magistrate for issuing prohibitory orders under Section 144 CrPC.  
                                 As we know fully well, the Supreme Court wants Centre to make a separate law on honour killings. It must be appreciated here that Centre along with States in tandem have been actively working also since last few years in this regard. Presently, a Bill to punish honour crimes titled “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” is under consideration also of the Government. 21 States out of 29 have consented also to make honour crimes a separate law altogether.
                                          All said and done, Apex Court has made it absolutely clear that there has to be zero tolerance on honour crimes and honour killings for which there can be no excuse. Also, khap panchayats can’t strike down consenting adults wedding at their own whims and fancies. CJI Misra also while writing for the Bench made it clear that, “Despite social advancement honour killing still persists. It has to be constantly borne in mind that rule of law as a concept is meant to have order in a society. It respects human rights. Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create a dent in exercise of the said right.”  The Court also sent a loud and clear message by observing that, “Feudal perceptions such as clan, caste and honour have to melt into oblivion. Any kind of torture or torment or ill-treatment in the name of honour that tantamount to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence.”
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.    

Delhi HC Restores 20 Disqualified AAP MLAs Membership

Let me start shaking my pen by first and foremost pointing out that the Delhi High Court on March 23, 2018 in WP (C) No. 750/2018, Kailash Gahlot & Ors v Election Commission of India & Ors in which 20 AAP MLAs had filed a writ petition challenging the disqualification  reversed the disqualification of 20 Aam Aadmi Party (AAP) MLAs and restored their membership to the Delhi State Assembly in offices-of-profit case. A Division Bench of the Delhi High Court set aside the January 20, 2018 Presidential order and referred the case back to the Election Commission (EC) for a fresh hearing. This has definitely come as a shot in the arm for AAP at a critical time!
                                          While craving for the exclusive indulgence of my esteemed readers, let me inform them that a Division Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar said that the January 19 Election Commission recommendation given to the President “is vitiated and bad in law for failure to comply with principles of natural justice”. The Bench ruled that, “There was a violation of natural justice and no oral hearing was given to the AAP MLAs before disqualifying them as legislators.” Valid point!
                                          It needs no rocket scientist to conclude that Delhi High Court has done no great favour to AAP MLAs. Delhi High Court has set aside their disqualification because the Election Commission did not give them a hearing as is the prescribed norm before recommending their disqualification to the President. It may be noted that the Delhi High Court had reserved its judgment on February 28 after the MLAs and the Election Commission had concluded their arguments!
                                           No wonder that AAP on learning of the judgment became overjoyed. Delhi Chief Minister and AAP convener Arvind Kejriwal described it as a victory of the truth. Kejriwal tweeted that, “The truth has triumphed. The people whom Delhi had voted as their representatives were wrongly disqualified.” The reaction of other AAP leaders was also like that of Kejriwal on expected lines.
                                   While craving for my esteemed readers exclusive indulgence, let me also inform them that  however, Delhi Congress chief Ajay Maken said there was “no need for the 20 AAP MLAs to get elated as the court order has given only partial relief”. He added that the Delhi High Court had not “disputed the merit” of the case that “lakhs and crores of rupees had been spent by the AAP government on these MLAs in perks, as that of a Minister.” He also was quick to point out that, “The High Court has only remanded the case to the Election Commission for a final hearing and not set aside the President’s order as such.”
                                           To be sure, the Delhi High Court on March 23 asked why the Election Commission had not informed the AAP MLAs, facing disqualification proceedings, about the decision of one of the then commissioners, OP Rawat to rejoin the Presidential reference proceedings after his recusal earlier last year in 2017. The Delhi High Court minced no words in questioning the flip-flop of OP Rawat who is now the Chief Election Commissioner. A Bench of Justices Sanjiv Khanna and Chander Shekhar remarked that the AAP MLAs should have been informed and told that Mr Rawat had agreed to rejoin and participate.
                                            Bluntly put, the Bench said explicitly that, “We would unhesitatingly and without any reservation hold that the rejoining or withdrawal of recusal by Mr OP Rawat should have been communicated and informed to the petitioners.” But that was not done. The Bench further said that, “This would have materially affected the response and reply of the petitioners…There is also difference between recusal and re-joining on withdrawal of the recusal. These were two separate stages and have different connotations and consequences.”                   
                                    It may be recalled that on April 19 in 2017, OP Rawat had recused himself from the reference proceedings after Delhi Chief Minister and party leader Arvind Kejriwal had questioned his independence. He later re-joined the reference proceedings on September 22, 2017. Rawat had become the Chief Election Commissioner in January this year. The Bench of Delhi High Court comprising of Justice Sanjiv Khanna and Justice Chander Shekhar had minced absolutely no words in stating most unambiguously that, “No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind and impartially.”     
                           It also cannot be lost sight of that another vitiating factor which vitiated the whole decision making process by the Election Commission of AAP MLAs was that Election Commissioner Sunil Arora who had not heard the matter and who assumed the office as late as September 2017 also signed the order. It is also a well settled principle of law that someone who does not hear the matter does not decide on it. But in this case it was violated by the Election Commissioner Sunil Arora as was also pointed out in the editorial of ‘The Hindu’ newspaper dated March 27, 2018 titled ‘Principle & procedure’.  
                               It may be recalled here that the 20 AAP MLAs had been appointed parliamentary secretaries to ministers in the Delhi government in March 2015 after the AAP’s stunning victory in the assembly elections. In September 2016, the Delhi High Court had itself ruled against this appointment and on January 20, President Ram Nath Kovind, on the Election Commission’s recommendation had disqualified all 20 for holding an office-of-profit. The Delhi High Court on January 24 had refused to stay the notification disqualifying the legislators but had restrained the Election Commission from taking “precipitate measures” such as announcing poll dates.
                           As things stand, in its order, the Delhi High Court said principles of natural justice had been violated since the legislators were not given opportunity to be heard. It said that, “Opinion of the ECI dated January 19 is vitiated and bad in law for failure to comply with principles of natural justice”. The Delhi High Court issued orders “quashing” of the opinion and the consequent order/notification dated January 20, 2018, for violation of principles of natural justice.
                                    Needless to say, the Bench said that, “These violations were the Election Commission’s failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification, failure to inform that Mr OP Rawat had expressed his intention to rejoin proceedings after his recusal and finally that Mr Sunil Arora had not participated and no hearing were held before him.” The then CEC OP Rawat had recused himself from cases related to the AAP after Kejriwal had questioned his independence on April 20, 2017, when Rawat was an Election Commissioner. Rawat agreed later to rejoin the proceedings on September 22, 2017 without informing the AAP. Arora had signed the January 19 recommendation to disqualify the MLAs.  
                                      It must be brought out here that while the Delhi High Court set aside the disqualification of 20 AAP MLAs on the ground that the Election Commission’s (EC) opinion was “bad in law” and against the principles of natural justice, former poll panel chief and former CEC AK Joti said that, “The legislators were given enough adequate opportunity to present their side of the case.” Joti was the Chief Election Commissioner when the Election Commission tendered its adverse opinion in the office-of-profit case to President Ram Nath Kovind. The opinion was given just two days before his retirement.
                                   It must also be brought out here that Joti also revealed while speaking with journalists that, “They were given sufficient opportunity to give their representation (in writing). But they did not give any representation. The first notice went in September and then another in November. So it’s not like an opportunity was not given. I don’t want to comment on the High Court’s order.”  
                                 Truth be told, the Delhi High Court Bench directed the Election Commission to hear the arguments again. It said that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression ‘office of profit held under the Government’.” The High Court also asked the Election Commission to “re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as parliamentary secretaries, without being influenced by the earlier order or observations on the said aspect in this order.”
                                 It is noteworthy that lawyer and petitioner Prashant Patel was the first to complain to then President Pranab Mukherjee in June 2015 that the MLAs holding the offices of Parliamentary Secretaries were in violation of the Constitution. He had sought their disqualification under Section 15 of the Government of National Capital Territory of Delhi Act, 1991. While the initial complaint was against 21 MLAs but Rajouri Garden MLA Jarnail Singh had resigned from his post to contest election against former Punjab CM Parkash Singh Badal in 2017 state election of Punjab.
                                     In response, the Delhi Legislative Assembly had then passed the Delhi Memebr of Legislative Assembly (Removal of Disqualification) (Amendment Bill), 2015, excluding Parliamentary Secretaries from ‘office of profit’. But the President had refused to give assent to this Bill. It is of utmost significance that none other than Delhi High Court itself had struck down the posts of Parliamentary Secretaries.
                                   Again, in response, the MLAs had then approached the ECI, contending that it shouldn’t entertain the petition against them, claiming that the High Court had already set aside their appointment as Parliamentary Secretaries. But the ECI had rejected their contention in June 2017 and recommended their disqualification. The MLAs then scrambled to Delhi High Court again for interim protection. But the court refused to grant them relief and expressed displeasure over their conduct for two years during the pendency of the proceedings before the Election Commission of India. Justice Rekha Palli had rapped the MLAs for using their petitions before the High Court as a shield to avoid participating in the Election Commission of India proceedings. But during the pendency of the petition, President Ram Nath Kovind had approved their disqualification.                                    
                                          The Delhi High Court noted that, “We have upheld validity of reference made by the President. The President need not make a fresh reference.” Now whether Prashant decides to appeal against the Delhi High Court order to the Supreme Court or not remains in the realm of speculation. Only time will decide that what future course of action he takes. No doubt, he has devoted his full three years to this case which he himself candidly acknowledges also as he feels that his fight is not personal against anyone but is a fight for principles which was grossly violated in the case of these 20 AAP MLAs appointed as Parliamentary Secretaries! This despite the glaring fact that a Constitutional clause prohibits legislators or parliamentarians from holding any position with monetary or other benefits which comes under the definition of office of profit. This clause is aimed at reducing conflict of interest situations for public representatives.
                                     One thing is quite clear: The AAP MLAs have only got temporary reprieve by Delhi High Court and not a very big reprieve! Delhi High Court held categorically that, “Opinion of the ECI dated 19th January, 2018 is vitiated and bad in law for failure to comply with the principles of natural justice. Accordingly, Writ of Certiorari is issued quashing the said opinion dated 19th January, 2018 and the consequent order/notification dated 20th January, 2018 for violation of principles of natural justice, namely, failure to give oral hearing and opportunity to address arguments on merits of the issue whether the petitioners had incurred disqualification and also on account of failure to inform that Mr O.P. Rawat had expressed his intention to rejoin proceedings after his recusal and lastly because Mr Sunil Arora had not participated and no hearings were held before him.”
                                 In its concluding remarks, the Delhi High Court Bench also held categorically that, “Order of remand is passed to the ECI to hear arguments and thereafter decide the all important and seminal issue: what is meant by the expression “office of profit held under the government” and re-examine the factual matrix to decide whether the petitioners had incurred disqualification on appointment as Parliamentary Secretaries, without being influenced by the earlier order or observations on the said aspect in this order. The writ petitions are accordingly partly allowed in the aforesaid terms, without any order as to costs.” It goes without saying that the Election Commission of India will now abide by what the Delhi High Court has said and decide only after giving the AAP MLAs an opportunity to present their side of version also before announcing its own judgment on this all important issue!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.