http://www.business-standard.com/india/news/qa-kamini-jaiswal-supreme-court-advocate/401009/Q&A: Kamini Jaiswal, Supreme Court advocate
'Existing laws enough for honour killings'
Sreelatha Menon / New Delhi July 11, 2010, 0:50 IST
If the government can act against sympathisers of Naxalites, it should
act against khap sympathisers too, Supreme Court advocate Kamini
Jaiswal tells Sreelatha Menon
The government is looking at legal reforms to tackle the illegal khap
panchayats and the honour killings they have been abetting. What kind
of reforms are needed?
I don't know what the government is saying. All the laws are in place.
And honour killing is a misnomer. What is honourable about killing
one's offspring? It is not about honour but about tyrannical control.
But many of these killings have to do with marriages between people
from the same gotra and sub-castes. It seems an effort to protect
cultural identities.
It has nothing to do with gotras. Two decades ago, this was rare and
no one talked about castes and sub-castes so much. Inter-religious
marriages used to cause a lot of tension then. People can keep their
identities, but killing is a crime. As for the issue of identities
being played up, it is all political and there is nothing cultural
about it. One man is not different from another. Who has divided the
society into these small units? Our political parties have enhanced
their importance.
What about the caste census?
It is wrong and should never happen. In our application forms, they
force us to write our castes and sub-castes. Who does this help? It is
all for a political purpose. The benefit goes to political parties,
who use this to decide which sub-caste they should choose their
candidate from. They are pushing us back by decades.
Jats have been asking for an amendment to the Hindu Marriage Act to
ban same-gotra marriages. Is there anything in the law on this?
Under the Act, the only marriage prohibited is between sapindas who
are related up to the third ascendant on the maternal side and up to
the fifth ascendant on the paternal side. That too is allowed if the
custom of the community permits it. So, it is permitted in the south
but not in the north.
You say Section 302 of the Indian Penal Code can deal with khap
killings, but why does it seem helpless. A court recently said there
was a limit beyond which it could not help.
The law is not helpless. Its implementation is not taking place. The
police is not independent. It is corrupt and a part of the same
society which is perpetrating these crimes. The main reason is that
the government does not want to alienate a class as it is concerned
only about votes, not about human lives. Section 302 says whoever
commits murder shall be punished with death or imprisonment for life
and shall also be liable to fine.What more is needed? Section 300 says
when a murder is culpable homicide not amounting to murder. So, there
is nothing wrong with the law.
There is often no evidence of khap panchayats taking decisions to
order a crime. So, how can they be punished?
To prove a conspiracy, you don't need evidence. You don't have to show
meetings having taken place. Have they been able to prove that those
accused in the Mumbai blasts met? For someone caught for murder, you
don't need evidence. Motive and circumstance are enough.
If a couple goes to the police station and says their life is in
danger from so and so. Isn't it evidence? As for khap panchayats, what
is their legal sanctity? They can't be above the law of the land.
The court, in the case of Manoj and Babli, who were killed for
same-gotra marriage, sentenced five people to death and yet the
government feels the need for a new law!
The courts can do it. Everything else is an attempt to divert
attention from the issue. The truth is that you don't want to use your
law and order machinery. And, more importantly, you don't want to take
a decision. So, the easiest thing to do is set up a GoM (group of
ministers) and blame the law.
Laws like the PNDT Act have not prevented doctors from identifying
girl children and helping parents abort them. No one takes action. In
Bhopal, no one caught those who approved storage of such a toxic gas
in such large quantities. So, what is the solution?
It can come partially by social awareness. When two people from
different communities show the courage to marry, the young and
progressive people in the community should unite to support them.
These sections of the society should rise. If someone kills a son or a
daughter, families should not associate with them. The only form the
amendment can take is to the extent that if someone dies within so
many years of marriage, there should be a presumption that it is an
honour killing, provided families have been opposed to the marriage.
Again, when police do not record complaints, there has to be action.
There has to be action against the implementing authorities and those
who failed to do their job. In fact, under existing laws, dereliction
of duty is punishable.
What about the Member of Parliament who supports khap panchayats which
are illegal caste councils?
Even the chief minister of Haryana is supporting them. It is abetment
to an offence and you must catch them all. You must swoop down on all
those who are supporting or sympathising with illegal things. You must
be tough with khap panchayats and catch them while holding meetings to
judge on various issues. It is illegal. Or else, do away with the law.
Have only these illegal courts. You can't have both.
What if there is a reprisal from the community? What if they feel
alienated and hurt?
Let them be. Take action if you want law to rule. You arrest
sympathisers of Naxalites, even if they are activists or journalists.
One killer is not different from another.
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