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India: Text of landmark court ruling regarding ’Khap Panchayats’ which decree honour killings

21 April 2011

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CRIMINAL APPEAL NO. 958 of 2011

Arumugam Servai versus State of Tamil Nadu

WITH

CRIMINAL APPEAL NO. 959 of 2011

Ajit Kumar and others versus State of Tamil Nadu

J U D G M E N T

MARKANDEY KATJU, J.

"Har zarre par ek qaifiyat-e-neemshabi hai

Ai saaki-e-dauraan yeh gunahon ki ghadi hai"

- Firaq Gorakhpuri

"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their creator by certain
inalienable rights, that among these are life, liberty, and the
pursuit of happiness"

- American Declaration of Independence, 1776

1. Over two centuries have passed since Thomas Jefferson
wrote those memorable words, which are still ringing in
history, but a large section of Indian society still
regard a section of their own countrymen as inferior. This mental
attitude is simply unacceptable in the modern age, and it is one of
the main causes holding up the country’s progress.

2. Leave granted.

3. These appeals have been filed against the common judgment and order
of the Madras High Court dated 25.1.2008 in Criminal
Appeal Nos. 536-37 of 2001 upholding the judgment of
the Leaned 4th Additional District and Sessions Judge,
Madurai.

4. The allegation against the appellants is that on
1.7.1999, there was an altercation between the appellants
and the complainants PW1 Panneerselvam and PW2 Mahamani in
a Temple Festival regarding the method of tying bullocks in the
Jallikattu. The appellant Arumugam Servai then insulted PW1 by
saying "you are a pallapayal and eating deadly cow beef". Then
accused 1, 7 and 9 attacked PW1 with sticks causing him injuries on
his left shoulder. When PW2 Mahamani intervened he was attacked by the
accused with sticks, and he sustained a fracture on his head, on
which there was a lacerated wound.
5. Apart from the two injured eye-witnesses, there are 3 other
eye-witnesses to the occurrence. The doctor has testified
to the injuries. The head fracture on Mahamani indicates
the deadly intent of the accused.

6. Both the Courts below have believed the prosecution
case, and we see no reason to differ. We have carefully perused
the testimony of the witnesses, and we see no reason to disbelieve
them.

7. The accused belong to the `servai’ caste which is a backward caste,
whereas the complainants belong to the `pallan’ caste
which is a Scheduled Caste in Tamilnadu.

8. The word `pallan’ no doubt denotes a specific
caste, but it is also a word used in a derogatory sense to
insult someone (just as in North India the word `chamar’ denotes a
specific caste, but it is also used in a derogatory sense to insult
someone).

Even calling a person a `pallan’, if used with
intent to insult a member of the Scheduled Caste, is, in
our opinion, an offence under Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter
referred to as the `SC/ST Act’). To call a person as a `pallapayal’ in
Tamilnadu is even more insulting, and hence is even more an offence.

9. Similarly, in Tamilnadu there is a caste called
`parayan’ but the word `parayan’ is also used in a
derogatory sense. The word `paraparayan’ is even more derogatory.

10. In our opinion uses of the words `pallan’,
`pallapayal’ `parayan’ or `paraparayan’ with intent to insult is
highly objectionable and is also an offence under the SC/ST Act. It is
just unacceptable in the modern age, just as the words `Nigger’ or
`Negro’ are unacceptable for African-Americans today (even if they
were acceptable 50 years ago).

11. In the present case, it is obvious that the word
`pallapayal’ was used by accused No. 1 to insult
Paneerselvam. Hence, it was clearly an offence under
the SC/ST Act.

12. In the modern age nobody’s feelings should be
hurt. In particular in a country like India with so much
diversity (see in this connection the decision of this Court in
Kailas vs. State of Maharashtra in Crl. Appeal No.
11/2011 decided on 5.1.2011) we must take care not to insult
anyone’s feelings on account of his caste, religion, tribe,
language, etc. Only then can we keep our country united and strong.

13. In Swaran Singh & Ors. vs. State thr’ Standing Counsel & Anr.
(2008) 12 SCR 132, this Court observed (vide paras 21 to 24) as under:

"21. Today the word `Chamar’ is often used by people belonging to the
so-called upper castes or even by OBCs as a word of insult, abuse and
derision. Calling a person `Chamar’ today is nowadays an
abusive language and is highly offensive. In fact, the
word `Chamar’ when used today is not normally used to
denote a caste but to intentionally insult and
humiliate someone.

22. It may be mentioned that when we interpret section 3(1)(x) of the
Act we have to see the purpose for which the Act was enacted. It was
obviously made to prevent indignities, humiliation and harassment to
the members of SC/ST community, as is evident from the Statement of
Objects & Reasons of the Act. Hence, while interpreting section
3(1)(x) of the Act, we have to take into account the popular
meaning of the word `Chamar’ which it has acquired by usage,
and not the etymological meaning. If we go by the
etymological meaning, we may frustrate the very object
of the Act, and hence that would not be a correct manner of
interpretation.

23. This is the age of democracy and equality. No people or community
should be today insulted or looked down upon, and
nobody’s feelings should be hurt. This is also the spirit of our
Constitution and is part of its basic features. Hence, in our opinion,
the so-called upper castes and OBCs should not use the word
`Chamar’ when addressing a member of the Scheduled Caste,
even if that person in fact belongs to the `Chamar’ caste, because use
of such a word will hurt his feelings. In such a country like ours
with so much diversity - so many religions, castes,
ethnic and lingual groups, etc. - all communities and groups must
be treated with respect, and no one should be looked down upon as an
inferior. That is the only way we can keep our country united.

24. In our opinion, calling a member of the Scheduled
Caste `Chamar’ with intent to insult or humiliate him
in a place within public view is certainly an offence
under section 3(1)(x) of the Act. Whether there was
intent to insult or humiliate by using the word
`Chamar’ will of course depend on the context in which it was
used".

14. We would also like to mention the highly objectionable two tumbler
system prevalent in many parts of Tamilnadu. This system
is that in many tea shops and restaurants there are
separate tumblers for serving tea or other drinks to
Scheduled Caste persons and non-Scheduled Caste persons.
In our opinion, this is highly objectionable, and is an
offence under the SC/ST Act, and hence those practicing it must
be criminally proceeded against and given harsh punishment if found
guilty. All administrative and police officers will be accountable
and departmentally proceeded against if, despite having
knowledge of any such practice in the area under
their jurisdiction they do not launch criminal proceedings against the
culprits.

15. In Lata Singh vs. State of UP. & Anr (2006) 5 SCC
475, this Court observed (vide paras 14 to 18) as under:

"14. This case reveals a shocking state of affairs. There is no
dispute that the petitioner is a major and was at all relevant times
a major. Hence she is free to marry anyone she likes or live with
anyone she likes. There is no bar to an inter-caste marriage under the
Hindu Marriage Act or any other law. Hence, we cannot see what
offence was committed by the petitioner, her husband or
her husband’s relatives.

15. We are of the opinion that no offence was committed by any of the
accused (the couple who had an inter caste marriage) and the whole
criminal case in question is an abuse of the process of the
Court as well as of the administrative machinery at the
instance of the petitioner’s brothers who were only furious
because the petitioner married outside her caste. We are distressed
to note that instead of taking action against the
petitioner’s brothers for their unlawful and high-handed acts (details
of which have been set out above) the police has instead
proceeded against the petitioner’s husband and his relatives.

16. Since several such instances are coming to our
knowledge of harassment, threats and violence against young men and
women who marry outside their caste, we feel it necessary to make some
general comments on the matter. The nation is passing through a
crucial transitional period in our history, and this Court
cannot remain silent in matters of great public concern,
such as the present one.

17. The caste system is a curse on the nation and
the sooner it is destroyed the better. In fact, it is dividing
the nation at a time when we have to be united to face the challenges
before the nation unitedly. Hence, inter-caste marriages are in
fact in the national interest as they will result
in destroying the caste system. However, disturbing news
are coming from several parts of the country that young men and
women who undergo inter-caste marriage, are threatened with
violence, or violence is actually committed on them. In
our opinion, such acts of violence or threats or
harassment are wholly illegal and those who commit them must be
severely punished. This is a free and democratic country, and once a
person becomes a major he or she can marry whosoever he/she likes.
If the parents of the boy or girl do not approve of such inter-caste
or inter-religious marriage the maximum they can do is that they can
cut off social relations with the son or the daughter, but they
cannot give threats or commit or instigate acts of
violence and cannot harass the person who undergoes
such inter-caste or inter- religious marriage. We, therefore,
direct that the administration/police authorities throughout the
country will see to it that if any boy or girl who is a major
undergoes inter-caste or inter-religious marriage with a woman or
man who is a major, the couple are not harassed by any one nor
subjected to threats or acts of violence, and any one who gives such
threats or harasses or commits acts of violence either himself or at
his instigation, is taken to task by instituting criminal proceedings
by the police against such persons and further stern action is taken
against such persons as provided by law.

18. We sometimes hear of `honour’ killings of such persons who undergo
inter-caste or inter-religious marriage of their own
free will. There is nothing honourable in such killings,
and in fact they are nothing but barbaric and shameful
acts of murder committed by brutal, feudal minded persons who
deserve harsh punishment. Only in this way can we stamp out such acts
of barbarism".

16. We have in recent years heard of `Khap Panchayats’ (known as katta
panchayats in Tamil Nadu) which often decree or encourage honour
killings or other atrocities in an institutionalized way on boys and
girls of different castes and religion, who wish to get married or
have been married, or interfere with the personal lives of people. We
are of the opinion that this is wholly illegal and has to be
ruthlessly stamped out. As already stated in Lata Singh’s case
(supra), there is nothing honourable in honour killing or other
atrocities and, in fact, it is nothing but barbaric and shameful
murder. Other atrocities in respect of personal lives of people
committed by brutal, feudal minded persons deserve harsh punishment.
Only in this way can we stamp out such acts of barbarism and feudal
mentality. Moreover, these acts take the law into their own hands, and
amount to kangaroo courts, which are wholly illegal.

17. Hence, we direct the administrative and police officials to take
strong measures to prevent such atrocious acts. If any such incidents
happen, apart from instituting criminal proceedings against those
responsible for such atrocities, the State Government is directed to
immediately suspend the District Magistrate/Collector and SSP/SPs of
the district as well as other officials concerned and charge sheet
them and proceed against them departmentally if they do not:

(1) prevent the incident if it has not already occurred but they have
knowledge of it in advance, or

(2) if it has occurred, they do not promptly apprehend the culprits
and others involved and institute criminal proceedings against them,
as in our opinion they will be deemed to be directly or indirectly
accountable in this connection.

18. The appellants in the present case have behaved
like uncivilized savages, and hence deserve no mercy. With these
observations the appeals are dismissed.

19. Copy of this judgment shall be sent to all Chief Secretaries, Home
Secretaries and Director Generals of Police in all States and Union
Territories of India with the direction that it should be circulated
to all officers up to the level of District Magistrates and
S.S.P./S.P. for strict compliance. Copy will also be sent to the
Registrar Generals/Registrars of all High Courts who will circulate it
to all Hon’ble Judges of the Court.

....... ............................J.

(Markandey Katju)

....................................J.

(Gyan Sudha Misra)

New Delhi;

19th April, 2011