Contesting Honour Killing:A Socio-

Legal PerspectiveBy: Parul Pareek1ST YEAR B.A LLB

NATIONAL LAW UNIVERSITY,ORISSA-parulpareek05@gmail.com

RAJASTHAN STATE HUMAN RIGHTS COMMISSION

PROJECTS BY LAW STUDENTS

UNDER THE GUIDANCE OF

CHAIRPERSON, JUSTICE N.K. JAIN(FORMER CHIEF JUSTICE HIGH COURT OF MADRAS & KARNATAKA)

With best complimentsRSHRC

RAJASTHAN STATE HUMAN RIGHTS COMMISSION

Under the guidance ofHon’ble Mr. justiceN.K. jain(former chief justice ofMadras & KarnatakaHigh Court)Chairperson RSHRC

Prepared by:Internship students of various law universities

Hon’ble Chairperson and Members ofState Human Rights Commission are:

Justice N.K Jain, Chairperson

Members:Justice Jagat SinghShri D.S.MeenaShri Pukhraj Seervi

Introduction

• This project intends to throw light on the dark and unchartered territories of honour killing and the ways to curb them.

• The methodology adopted in this project is Doctrinal in nature keeping in view the theoretical and evaluative aspect of the topic.

HONOUR KILLING:DEFINITION

• Although this part intends to define honour killing but unfortunately this word cannot find any place, neither in our constitution which is one of the bulkiest constitution among all constitutions of the world nor in any Indian legal acts or statutes.

• To put it simple, honour killing or customary killing is the name

given to murder committed by family members of their child for marrying against their will, custom and tradition which according to them will bring dishonour to the family. It is that black spot on the pure and sacred relation of marriage, which forces innocent lover to either give up or die.

CONTEXTUALISING THE NOTION OF HONOUR KILLING

MODERNIST V. CONSERVATIVE APPROACH• With the advent of modernity, the notion that

“individual is a part of society” is replaced by “society is formed by individuals”. But even in the modern era, people with orthodox mindset continue to live and try to impose their irrational custom and tradition by justifying them on fake science reports and findings

• Conservative people of the modern era like some of our politicians are of the contention that if the blood relatives try to reproduce, the chances of the offspring getting genetic disorders by mutation of genes may arise. They therefore bring up the petition of amending the Hindu marriage act, 1954 to ban marriages of such kind. Modernist say that even if the report is true it is possible only in the rarest of the rare cases and therefore cannot in any way justify the gruesome killings in the name of honour. Modernist unlike the conservative are of the view that custom are built to suit society’s necessities and it is an organic concept and they should evolve with time to suit the needs of the present society and the customs which become obsolete and are burden to the present scenario should be abolished whereas the Conservative give prime importance to the custom whatever the situation may arise.

PRACTICES OF HONOUR KILLING

HISTORICAL PRACTICES• From the time immemorial, importance is given to

the person’s ascribed status and not to his achieved status. Here we are talking about Caste, religion, gotra and gender as the ascribed status and these are the elements responsible for the spate of honour killings in the present .

• During the time of partition, and between the years when India converted from independence to Republic (1947-1950), Indian women were forced to marry men from Pakistan or vice-versa. As, a result of that , to save family honour or to remain in orthodox society ,people started to search for the women who did so and when they were found ,were mercilessly killed .

POSITION OF WOMEN IN INDIAN SOCIETY

• Our Indian custom has been of a Patriarchal notion which treats women as a commodity and believes that she is responsible and has a burden to maintain their family and community’s honour. Anything done in violation of this by the woman cannot be tolerated and the penalty could be not other than her death

THE ORTHODOX NOTION STILL EXISTS

• Marriage was not considered as an individual’s affair and parents were the sole authority to take decisions in this regard and consent of their children was not regarded as a condition precedent to a valid marriage.

• And in addition to it the parents also wanted that their property should be transferred to their legitimate heir. According to them the legitimate child can only be from the spouse which they have chosen for their child.

• Another important concept in this regard is Gotra. Gotra is said to be originated way back in history from many sages like vashishtha, shandilya etc. The people belonging to the same gotra are taken as siblings and are not permitted to marry within the same gotra. There exists brotherhood for the people within the same gotra and the women in that gotra are treated as sisters by the men within that gotra. Now with the time, this custom was followed by the increasing number of people and became law.

BIRTH OF KHAP PANCHAYAT

• To guard this law there came the cruel “Khap Panchayat” in around 14th century. The Khap Panchayats are the courts of a group of villages sharing the same caste or geography formed by the upper caste people to strengthen their power over the rest of the community. According to these, love marriage is the heinous crime which is required to be punished by imposing death penalty on the one doing it.

SOCIOLOGICAL DIMENSION

• Honour killing is not only a law and order problem, it is in fact a social evil which is further related to many social evils present in the Indian society from the time immemorial. Most of the sociologists believe that honour killing is still taking place because of the rigid caste system prevalent in India. People are not ready to accept inter caste marriages as they have fear of losing their caste status. They are emotionally and historically attached to their caste and don’t want to waive it at any cost because their contention is that there is great dissimilarity of culture and problem of identity for future generation, so these types of marriages are short lived and impermanent.

• Another reason given by them is that they cannot preserve their purity of blood.

• In northern India, there exists strong sense of brotherhood. The people of same Gotra are considered to be siblings and marriage among siblings is a heinous crime. The worst part of it is that the offspring of same Gotra couple is not acceptable in the society. For justifying this they provided scientific reasoning that the offspring of the same Gotra spouses are genetically mutated.

WOMAN A VICTIM:SOCIO PERSPECTIVE

• In the patriarchal society of ours, women are considered as a potential commodity for sexual pleasure for men; this is a fundamental question of hegemony. According to them, an ideal man is one who preserve his honour by brutally killing his wife /sister, whom he believes or has reason to believe, to be in a relationship or in love with a man who is not fit for her .

• Women is a property to his father, who has privilege to exert control over her sexuality to prevent chaos and retaliate to the act done by her which are immoral according to androcratic standard of family/society. Honour killing is a crime which is always committed by men and is a masculine homicide. It is in reaction to the challenges of the masculine position of the male members of the family and the society who gathers and decides on punishment and who should perform it.

• In paternal masculinity father has every right with regard to his offspring as he is under obligation to support her economically and look after her interest all the time, which gives him privilege to intervene in the most personal matters of female child, most importantly marriage, where he has power to act on behalf of his child.

• women are often victimized by their brothers. Fratriarchy ,a part of androcracy, which have quite different set of values from that of patriarchy belongs to a men’s league which are a mode of male domination. Interest of fratrist favour the interest of family. They do this because of the affinity with the group to which they belong. In order to prove his powerful position in the group or to show his position in his family , he perform the obligations of his father and contribute to the violence against female members of his family, which in reality is actually done for his own interest

• IN CASE OF MARRIED MAN, To prove his gender identity in dominant men’s league, he enjoys certain rights and obligation and intervenes in all the personal matter related to women in his family. The Father’s arbitrary right to make any kind of decisions like to force his child for marriage is another patriarchal privilege for man.

OUTSET OF MODERNITY

• The people are not ready to accept the modern values and refuse to change their attitude towards marriages. They don’t give importance to individual rights which has become priority of the modern world and still continues to believe on superstition and their community’s rigid laws even when they have become obsolete. They can’t accept the fact that their offspring could go against their wish or marry without their consent, they are also not ready to accept their deteriorating importance in this matter which makes them insecure about their power position in family and society.

• Indian capitalism has failed to eliminate the feudalism which is very much evident from the still existing practice of honour killing. Feudal lords want their control over maximum land and property. If the woman makes her own choice in choosing partner then there is greater probability of her claiming for the share of land and property. This is the subtle reason behind honour killing in feudalist-northern states.

• Dominance of high caste people over lower caste leads to confrontation between them. This power difference between high caste and sub-ordinate caste is in most threatening form now a days, members of Khap panchayat make rules and regulation in such a way that the laws made by them suits higher caste people which includes them. As a result of this, lower caste women have to follow the existing norms which lead to their exploitation. Higher caste people who are generally feudal lords make rules which favour their feudal approach of keeping property intact with them and implement the same upon lower caste people.

Individual Rights :Need of Modernity

• According to Jeremy Bentham and J. S. Mill, who are the proponents of utilitarianism, individual posses the right because the society gives them. In contrast to this, Kantianism believes that individual right should be respected and should not be sacrificed at any cost. In the present context, applying the principle of utilitarianism would prove fatal for the innocent lovers.

Honour killing and the law

• The orders passed by the khap panchayat is a sheer violation of individual’s human right. Our indian constitution provides for article 21 which has been given wider interpretation over the years. It provides the basic right i.e. rights to life.

• We have many laws to prevent a woman from physical, mental or emotional harassment to guarantee Article 21 ,which includes life free from intimidation, threat and violence and it doesn’t mean animal existence but living with dignity and the person is guaranteed the same except according to procedure established by law.

• Transformation of custom into law requires that the custom must be rational but the custom of honour killing is just another irrational custom like sati. So, it should be dealt with the same stringent laws as sati was dealt with to abolish it completely.State has power under the concurrent list to make laws to bring out social reform as stated in the Narsu Appa mali case. One of the prime objectives of the preamble is to provide for social justice. So, state is under obligation to make laws to achieve this objective

• Honour killing also violates the human rights by punishing women which includes rape, imprisonment within the home, forced marriage, mutilation and even murder. The Union of India as a member to the Universal Declaration of Human Rights has an obligation to protect the lives, rights and liberty of individuals and protect them from such heinous crimes

• The brutal act of Khap panchayat other than sec 300 and 302 of IPC, also falls under Section 120A and B and sections 107-116 which penalizes any person who is a party to a criminal conspiracy and penalizes persons for abetment of offences including murder and culpable homicide respectively. Also khap panchayat is liable under Section 34 and 35 which in turn penalizes criminal acts done by several persons in furtherance of common intention.

Action must be taken

• The state looking at such pathetic condition and everyday violation of human rights to which every individual is entitled should intervene and come up with the laws of socially uplifting the women. The judiciary should apply its powerful tool of judicial activism, whereby judiciary act as an activist and takes cognizance of the things itself and advices centre or state to make laws.

• Directive principle of state policy are regarded as fundamental to the governance of the country, the political party contesting the elections are need to prepare their manifesto according to D.P.S.P. So, the government of these honour killing prone states should include policies to eradicate it in the 5 -year plan. D.P.S.P recognizes the role of state under Article 38, to secure a social order for the promotion of the welfare of the people and under Article 40, to take steps to organize village panchayat.

• People recognize the legitimacy of the decisions given by khap panchayat because they give speedy justice to the people, who generally don’t go to the court of law knowing its long procedure, delay and denial of justice and the rampant corruption present in the Indian judiciary. So, the need of the hour is to extend the helping hand of panchayat to these areas, to abolish these cruel institutions.

• Women reservation Bill, which is still pending in parliament should be passed to empower women ,so that they can form majority or atleast equal part of the legislative body in order to raise such issues and to ensure legislating laws on the same.

• Honour killing is the social evil and mere enacting of law won’t help improving the condition, proper implementation is required and a strong sense of moral values must be implanted within the people through educating them and by spreading awareness of these issues amongst them. Large camps must be put into ignition to educate masses.

• Separate classes for educating old people must be established to overcome their superstitions and irrational traditions.

Group movements like feminist movements must take the initial to form the mass movement and force the government to form stringent laws against this social evil.

Media can also play an important role by supporting the mass movement and highlighting the heinous crimes committed by khap panchayat.

Conclusion

• Although Mr. P.Chidabram has proposed that a bill in this regard will be introduced in parliament and they will try to define honour killing. But until and unless proper care is not taken, it is difficult to examine this sensitive issue. Lok Sabha Speaker Meira Kumar has also expressed serious concern over the growing incidents saying that young people are being killed by those who are supposed to love them. Although the spark against honour killing is started but continuation of the same is really a difficult task. And for this, contribution of common people is very much essential.

• The union law minister Veerappa Moily said that the government is planning to bring a bill to provide for deterrent punishment for honour killings. In June 1995, a low caste boy Bijoy Kumar Bind, was publicly lynched for his involvement with the upper caste girl in Bihar, Bhagalpur. There are uncountable cases on honour killing which are done by the family members and are given the name of accidents. Some land mark cases like Mehrana murder case in which Roshni, a Jat girl from U.P ran away with a low caste boy and for that they had to give up their life. Other such cases are Nirupama Pathak (journalist) case , Manoj-Babli honour killing case and many others.

• One of the reason behind these merciless crimes could be greed for property of feudal lords and the fear of women asking for share in it. So, the Hindu succession Act,1956 must be amended to provide a law which ensure the compulsory part of property to the women anyhow, so that it could reduce the cases of honour killing which are merely for these reasons.

• Another measure could be to amend Indian Evidence Act, 1872 to put the burden on the accused to prove himself innocent alike in Dowry Death cases.

• Under Article 14, states vulnerable to honour killing like Haryana, U.P, Bihar etc. should be put into a special category and fast track court should be established to deal with such cases more effectively, shelter houses for couples should be provided, monetary relief and special protection for the couple should be given.

• The decision of Lata Singh case must be implemented properly. In Kharak Singh case court held that disturbing the sleep and ordinary comfort amounts to infringement of personal liberty of a person, then how the same law ignore the killing, for selection of the life partner of one’s own choice which is entirely a personal matter of an individual.

BIBLIOGRAPHY

• Google• Wikipedia• Unicef• Books of RSHRC

ACKNOWLEDGEMNT

It gives me great pleasure to express myGratitude to all concerned in helping mecomplete myproject. I am very thankful to Rajasthan StateHuman Rights Commission for giving me achance to do the internship here.

thank you