Q&A: Kamini Jaiswal, Supreme Court advocate

Last Updated: Sat, Jul 10, 2010 18:40 hrs

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.

More from Sify: