KILLING IN THE NAME OF HONOUR: AN ANALYSIS OF ROLE OF JUDICIARY BY - SHRIYA JAIN & MRIDU JAIN
KILLING IN
THE NAME OF HONOUR: AN ANALYSIS OF ROLE OF JUDICIARY [1]
AUTHORED BY
- SHRIYA JAIN &
MRIDU JAIN
ABSTRACT
Person preference is inextricably
linked to dignity, since dignity cannot be imagined in the absence of choice.
The same is bound by the principle of statutory restriction, except in the
absence of such limitation, no one, that is, no one, shall be able to conflict
with the fulfilment of the said option. It would be exceedingly difficult to
think about dignity in its sanctified completeness if one's ability to express
one's own preference was limited. When two adults marry willingly, they chose
their path; they complete their relationship; they agree it is their intention
and that they have the moral right to do so. Not only in today's culture, but
even in the new political structure, the idea of honour killing has a large
following. Honour killings are a pervasive, violent, and hotly debated human
rights problem in India and elsewhere. This paper thus seeks to analyse the
concept of violence in the name honour, its causes and its legal aspects.
KEYWORDS: Honour Killing, Dignity, Marriage,
Violence
1.1.
INTRODUCTION
Honour killing is the most barbaric
tradition in society, in which the nation would destroy the opponent if there
is even the slightest intention to threaten the social order. In certain parts
of the world, insult, embarrassment, and ridicule are prevalent notions or concepts,
as well as common real-life experiences. The growing instances of brutal
killings of innocent youths in the name of family or clan honour in India is
causing concern among liberal minded citizens, religious, political, and
foreign and national institutions. In reality, using the term honour to
describe such a dishonourable act is deplorable in and of itself. Those who
take pride in those killings should be embarrassed of their acts rather than
proud of them. Honour killing is described as the assassination or forced
suicide of a person by a family or clan member based on a suspicion or
assumption that the individual has betrayed his or her reputation or virtue,
thus tarnishing or blemishing the family's honour. In families or cultures
where honour killings are common, individuals often use the concepts of honour
and guilt to judge their own behaviour as well as that of their peers.
Humanity's most precious spiritual attribute is honour. It is deeply ingrained
in the creature's nature. Humans have a long history of defending their honour,
even at the expense of their lives. It's a kingdom made up of blood relatives.
Defilement of honour is known as the most egregious social offence, and its
elimination becomes a mutual and spiritual obligation of close friends.
1.2. RESEARCH METHODOLOGY
1.2.1. REVIEW OF LITERATURE
The following study content was
analysed in order to objectively review the research work on honour killings in
order to arrive at specific ideas and remedies. The researcher examined the
following books, journals, papers, and judgments during his study. Here are a
couple that have been mentioned:
In his novel, Rao Arif Ali Khan, the
author goes into great depth about honour killings, including their origins,
history, and legislative and judicial perspectives. The author has since sought
to introduce numerous remedies in order to avoid such cries in society.
The editors of Honour Killing and
Violence have addressed different aspects of honour and honour killing. The
book discussed honour killing violence from a family perspective, as well as
distinguishing between ordinary violence and honour-based violence.
M.S. Rana describes the idea of
honour as the most precious spiritual characteristic of humanity and how its
protection, even at the expense of life, has been reigning among human beings
since the dawn of time in her article “Honour Killings were not Caste, Religion
Specific.”
M. Rashid addressed the meaning and
idea of honour killings in his article, “Honour Killing: A Threat to
Progressive Society”. In addition, he noted that honour killing occurs when
family members murder another family member who has brought shame and ridicule
to the family, and that it is still prevalent in many parts of India.[2]
1.2.2. HYPOTHESIS
honour killings not only pose a
significant threat to a progressive society, but they also undermine the
justice system's pillars, which, if they crumble, would obliterate the
society's entire social fabric. The need of the hour is to take action against
the horror of honour killing before the consequences become too serious.
Working hypothesis have been formulated based on the study of literature, which
say that:
1.
The
existence of a dogmatic value system dominant in society is the primary force
behind honour killing.
2.
The
issue of honour killing can be successfully addressed by improving the current
social and legal enforcement mechanisms.
1.2.3. OBJECTIVE
In this paper, an effort is made to
investigate different problems and dimensions relevant to honour killings in
India, as well as a brief review of reasons responsible for a spike in the
number of cases of honour killings. An effort was made to investigate the rules
and legal provisions regulating honour killings, as well as to propose
yardsticks for eradicating this evil from Indian society.
1.2.4. RESEARCH PROBLEM
Following are the
research problems on which this paper is based:
1. What are the views of judiciary and
how various statues and legislations deal with this issue?
2. Was this issue a tradition and is it
still prevalent in modern India?
2.
CONCEPTUAL STUDY
2.1. HONOUR
2.1.1. MEANING
The definition of honour, which
values an individual's intrinsic worth, can be seen in a number of cultural
contexts around the world. Honour has several distinct interpretations and is
interpreted differently by different classes of people[3]. In classical Latin, the words "honour,
honos, honoris" connote reputation, reverence, reverence, and integrity,
and are synonymous with the presence of public dignities and positions, as well
as awards, ornaments, and apparels that grant these attributes. They elevate
their holder above the rest of society or culture.[4]Many
cultural and social influences have contributed to its steady shift in
interpretations, and in India, the concept is often examined through the prism
of caste rigidity.
2.1.2. HONOUR AND SOIETY
The honour is conferred upon
society's elites, who traditionally include landlords and uneducated
individuals. They are willing to go to any length to maintain the honour. They
pass judgement and determine the fates of the weak and oppressed. As defined by
conservative family ideologies, such a moral code describes honour in terms of
women's given sexual and parental roles[5].
Although the exact definitions of honour vary, they all depend on the social
requirement for holders, bestowers, and viewers of honour. Dishonour and
disgraceful perspectives also emerge in the historically positioned self and in
time and culture-specific frameworks.[6] As
a consequence, what an honour represents to a culture can be viewed in a number
of ways. However, the meaning is often made by a dominant class.
2.2. HONOUR KILLING
2.2.1. MEANING AND CONCEPT
Honour killing is more like a ritual
and culture than a religious practise.
Though faith has been used to excuse
honour killings in the past. Honour killing is a heinous crime. Carried out to
restore soiled family honour, loyalty, chastity, or to restore soiled family
honour, respect, chastity, or to restore soiled family honour, respect, honour
tarnished, or the honour in question as a consequence, murder is a form of
crime. It cleanses the defiled culture with the deviant member's semen. In
order to restore sanctity, social traditions often require the execution of the
offender. The more violent the murder, the more completely the family's honour
is restored. As a result, people are often strangled, knifed, or hacked to
death. Violence has the effect of enhancing the purity that is to be conferred.
‘Honour killing,' also known as ‘customary killing,' is the death of a family
or clan member by one or more family members, with the killers, or the group at
large, thinking that the perpetrator has brought disgrace to the family's
honour. It is a crime that derives from a person's history, race, or ethnicity.
It's also possible to term it a spiritual tradition. In societies where
“honour” killings occur and women are seen as responsible for protecting a
family's “honour,” the conceptions of male rank and family status are
particularly important. If a woman or girl is convicted or suspected of
engaging in conduct that may jeopardize a man's or family's standing, she could
face vicious retribution from her families, which often ends in violent death.
2.2.2. HISTORY AND BACKGROUND
It has been recorded in ancient
Indian history that invasions had terrible repercussions for women. To protect
the clan's purity and chastity, the concept of honour killing is deeply
ingrained. Women were frequently encountered, and instead of being taken
prisoner by the enemy, they choose to end their own lives. If their man folk
were lost in combat during the Medieval period, the women of Rajasthan royalty
set themselves ablaze. Rather than being the servants of the enemies, they
desired to remain chaste and noble. Johor was the name given to this practise.
There are many cases of male family members murdering their female family
members in order to flee an enemy. Number Female infanticide has also been
linked to honour killings. During the division of the country, the practise of
honour killing was widespread. Around 1947 and 1950, a large number of women
were murdered in order to save family honour. Under the partition, several
instances of forced marriages occurred, in which women from the partitioned
land were forced to marry citizens from the partitioned land. Then came the
tradition of hunting, in which married women who had been coerced to marry
someone from another nation were tracked down and murdered as they returned
home to protect the family honour.
3.
LEGAL FRAMEWORK
3.1. STATUTORY PERSPECTIVE
The horrible crime of honour murders
in India is neither specifically covered by any laws, nor are there any
penalties that may be applied. Honour killings in India are prosecuted under
the terms of the Indian Penal Code, 1860. Honour killings are classified as
grave offences and fall into the categories of homicide and murder. The act of
honour killing is governed by different provisions of the Indian Penal Code,
1860. The following are some of the most relevant sections of the IPC: Section
300– This section addresses murder; culpable homicide is called murder if it is
committed with the intent to kill. So, if an individual is killed because he
has harmed the family's honour, the people who killed him can be charged under
section 300 of the IPC, because they committed the act on purpose. Sections
299-304 – These sections punish someone who commits murder or culpable homicide
not the amounting to murder. The sentence for murder in these parts is life in
jail, with or without a fine, or both. Section 307: Attempts at murder are
addressed here.Where the accused attempts to murder anyone but the victim is
spared due to any act, the accused will be charged under section 307 of the
IPC,1860. Apart from these main parts, the Indian Penal Code contains a number
of other penalties. sections 120A and 120B of the Criminal Code provide for
penalties for criminal conspiracy. Sections 107 to 116 also allow abetment of
the above-mentioned crimes, such as murder and culpable homicide that does not
amount to murder, punishable.
3.2. JUDICIAL PERSPECTIVE
The judiciary is an integral aspect
of the political process, and its role in the development of a democratic
society is difficult to grasp. The judiciary's position is not limited to
practising justice; it also serves as an intermediary and protector of the
people's rights. The judiciary has the right of judicial review, which requires
it to validate or invalidate statutes that are in dispute with constitutional
provisions. In a country like India, the position of the judiciary becomes much
more important.
In a historic judgement, the Karnal
District Court ordered the execution of the five suspects in the Manoj &
Babli ‘honour killing' case[7],
in march 2010, while granting a life sentence to the khap (local caste-based
council) head who commanded the killings of Manoj Banwala (23) and Babli
Banwala (19), who eloped and married and later were killed. The case was the
first in India to convict khap panchayats and to result in the death penalty in
an honour killing case. It was praised as a "landmark judgement" by
Indian legal professionals and the media. Additionally, hardly many honour
killing cases end up in court, and this is the first time the groom's family
has filed a complaint in an honour killing.
In the case of Lata Singh Vs State of Uttar
Pradesh[8]
and Others, a Supreme Court bench led by Justice Markandey Katju said,
"Honour killings are nothing but barbaric cold-blooded murder, and no
honour is involved in such killings,inter-caste and inter-religious marriages
should be encouraged to strengthen the social fabric of society”.
In India, honour killings are still
common. Two recent case laws in this area are listed below.
In the case of Shakti Vahini v. Union of India[9],
an NGO by the name of Shakti Vahini filed a writ petition to create procedures
to avoid honour killings. In its decision, the Court claimed that any knap
Panchayat cannot prohibit two people from entering into a marital partnership,
and that such conduct would be rendered unlawful and immoral. In addition, the
Court established rules to prohibit such activities from occurring in the
future, as well as remedial action.
Furthermore, in the case of State of
Maharashtra v. Eknath Kisan Kumbharkar[10],
a girl was killed because she had arranged a love marriage against her parents'
wishes. In this case, the Court ruled that 'honour killings' that occur around
the world are not 'honourable.' It can only be defined as brutality perpetrated
by those with feudal minds who are attempting to prove their worth. Such
actions warrant no leniency and are treated with the utmost severity by this
Court. The suspects of such offences will face the death penalty if they are
found guilty.
3.3. CONSTITUTIONAL PERSPECTIVE
Apart from the provisions of the
Indian Penal Code, 1860, the Indian Constitution also grants a number of rights
to its residents, which may be challenged in the Honourable courts if they are
violated. Honour killings are violative of various Articles 14, 15(1) and
(3), 17, 18, 19, and 21 of the Constitution. Article 14 – This article declares
that everyone is equal and that no one shall be discriminated against on the
grounds of their race, faith, or national origin.
Articles 15(1) and 15(3) state that
no one shall be barred on the grounds of caste, creed, ethnicity, sex, or any
other element. Article 21– According to this article, everyone has the right to
life, which requires the right to live a dignified life.
4.
CRITICAL ANALYSIS
Making the act of honour killing a
distinct offence will hopefully provide greater transparency for law
enforcement authorities. There is currently no description or clarity for
Honour Killing/crime. We don't have any evidence on honour killings or honour
offences so they aren't considered distinct crimes. All offences against women
committed by the group should be known as honour crimes. There have been many
instances of women being called witches, paraded nude, and humiliated in
public, all of which are heinous acts of bravery that warrant a specific
legislation and strict penalties. A special legislation may act as a deterrent.
If two people wish to marry for reasons of their own free will, they are free
to do so. The family, society, or Panchayat have no right to denounce the
relationship in order to object to and condemn the behaviour of young people of
marriageable age. If the spouses are from the same gotra or from different
castes or cultures, their preference cannot be affected. The socio-cultural
phenomena in India are a complex structure. The rigid caste system, combined
with an unwavering belief in purity, has resulted in rigid social systems. The
legislation should take into account the different complexities, cultural
traditions, and social norms in order to establish an effective framework for
ending honour killing.
5.
CONCLUSION
Abuse has long been at the forefront
of humanity's evolution. In human culture, there has always been a deep power
struggle. The male is taught to be violent against the poorer parts of society,
particularly in patriarchal societies. A culture Efforts to eliminate abuse
have been successful, but there is much further work to be done. Few people
recognize the enormity of the honour killing ideology's influence.
While honour as a moral reason for
killing is in line with the mentality of certain groups, this incentive cannot
be applied to whole communities, as many individuals from the same state do not
follow that belief system. Human accountability is not diminished by the lack
of societal values and traditions, even in the few cases when there is
substantial individual psychopathology. Understanding the individual, family,
group, cultural, and social factors at play in honour killings is important. A
person has their own freedom to enjoy a life of liberty and the right to marry,
which creates a negative image for society and individuals. Hopefully, this
paper will lead to a better understanding of the complicated mechanisms at
stake in cases of honour killings, allowing future plans to be stopped.
BIBLIOGRAPHY
https://journals.sagepub.com/doi/full/10.1177/2455632719880870
[1] Shriya Jain & Mridu Jain (students
at Vivekananda Institute of Professional Studies, GGSIPU)
[2]M. Rashid “Honour Killing: A
Threat to Progressive Society”
[3] Unni Wikam, In Honour of Fadime,
Murder and Shame14 (The University of Chicago Press, London, 2008).
[4] Recep Dogan “Is Honor Killing a
Muslim Phenomenon? Textual Interpretations and Cultural Representations”,
Journal of Muslim Minority Affairs 423-440 at 424,
[5] Report of Special Rapporteur on
“Violence Against Women, Its Causes and Consequences”
[6] Carolyn Strange, “Adjusting the
Lens of Honour Based Violence; Perspectives from Euro American History”, in
Aisha K. Gill, Carolyn Strange et.al. (eds), Honour Killing
[7] Criminal Appeal No.479-DB of
2010
[8] (2006) 5 SCC 475
[9] AIR 2018 SC 1601
[10] Special Leave to Appeal (Crl.)
No(s). 251/2020