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A CRITICAL ANALYSIS OF HONOUR KILLING IN INDIA
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A CRITICAL ANALYSIS OF HONOUR
KILLING IN INDIA
AUTHORED BY
- BHARGAVI P
LLM II YEAR
(New Law
College, Bharatiya Vidyapeeth Deemed University, Pune)
Abstract
Freedom
of Choice is an Individual Right which is enshrined
under Right to Life and Personal Liberty in Article 21. If it is Curbed or
wrecked by societal pressure, then it no longer
remains a Private Right. This oppression is
asserted to protect the Integrity of Society and if
any individual tarnishes it or is likely to do so then it
results in impairment or death of that person. This article deals with the
Concept of Honor Killing, its evolution, existence
in Muslim Religion, factors responsible for the commission, need for a legal
framework, Constitutional perspective and recent cases.
Introduction
Law
does not provide a definite definition for the term Honour Killing. Honour in general means ‘Prestige, Respect or Esteem'. It is
the duty of both men and women to preserve this but in a patriarchal
society like ours, women are always termed as a ‘Weaker Sex’. Men are
considered as an Asset while women as a liability. It is the responsibility of women alone to
protect the honor and integrity of the Family while men rule them. The position of the person in society is decided by being born in a Family Heritage.
Kinship, otherwise called
blood relationships or relatives, form a major part
of every family. In a Joint Family system, the
decision of Karta rules over other coparceners. For example, in every family
the grandfather is considered as the head of the family and his wife, sons,
daughters, sons' wife, and their children form part
of the coparceners. Even
though the setup of Joint Family system is demolishing,
when it comes to important decision like Marriage it is never associated with a
single family but the whole clan gets involved in its decision making. Marriage
is designated as a sacred ritual performed with the
blessings of family and relatives and it will be considered a dishonor to the family if he doesn’t follow these social norms. Arrange Marriage is the concept
that has been followed by society for decades.
Loving a person before wedlock is considered a
crime in many societies. Love Marriages to some
extent can be accepted by few if they are within
the same Jati or Social Status. But if it is a Inter Caste marriage or marrying
a person of different social hierarchy then it results in heinous offence of
Honour Killing or Shame Killing. Thus Honor killings, a devastating
manifestation of deeply entrenched societal norms, continue to plague India,
undermining its progress towards a more egalitarian and just society. The term
"honor killing" refers to the brutal act of murdering a family
member, typically a woman, perceived to have brought shame or dishonor to the
family. Rooted in caste, religion, or traditional norms, these killings
perpetuate a cycle of violence, injustice, and societal regression.
History
The
origin of Honour killing can be dated back to 17th Century where deadly
punishments were given especially to Women. The Babylonian Code of Hammurabi in
1790 BC punished the unfaithful spouses by drowning them. In the Book of
Genesis of Bible, it was stated that if a woman was found pregnant by sexual
profligacy, then the child born out of such brothels will be burned to aches.
The History of Honour Killing in India can be traced from “Ramayana”
where Surpankha married Vidyuth Julvey, an army chief under Gandharva Vivah in
Kalikey and Ravana killed as he deemed it tarnishing
his family reputation[1].
The
system of Social Stratification called as “Chaturvarna System” was
introduced by Purushasukta of the Rig Veda which led to the formation of Caste
system, the major reason for Honour Killing in India. The concept of Purity and
Pollution was adhered to. Endogamy Marriage, that is marriage within the caste
was accepted. Inter caste marriage like ‘Anuloma’ or ‘Hypergamous’ where
superior caste men marry inferior caste women and ‘Protiloma’ or ‘Hypogamy’
where inferior caste men marry women of superior caste are forbidden. According
to Manu Smriti Chapter 8 Shloka 366, death penalty will be imposed if the men
from Shudra community ask for marrying a woman from Brahmin Community. Even
though eminent social reformers like Jotirao Phule, Dr. Babasaheb Ambedkar and
E.V.Ramasamy Periyar has bought about transformation with regards to allowing
and accepting Inter Caste Marriage, the concept of caste is deeply rooted in
our minds and social norms that it cannot be removed[2].
Understanding the Prevalence:
India
has made significant progress in economic and educational advancements, but
honor murders are still common in many areas of the nation, particularly in
rural and traditional areas. Most of the victims are young women who choose
partners against the desires of their families, marry outside of their caste or
religion, or participate in activities that are considered socially
inappropriate. Extreme steps are taken in the name of restoring honor since
these activities are perceived as insults to the family's reputation.
Honour Kiling in Islamic Religion
The
existence of this practice is contrary with the Preaching of Islam. The crucial
facet of belief as demonstrated in the verses of Quaran states that the
Wrongdoer must be penalized but not with death, equal punishment of Hundred
Strips should be awarded for men and women and if the person repents for his
mistake, then he must be forgiven but, in practicality
Muslim people believe that the Penetrators should be hanged to death based on
suspicion alone and before receiving any proper evidence[3].
Reasons
for Hunour Killing:
·
Caste System: The
rule of Majority is the main root cause for existence of caste system in India.
Caste attributes to the status of the person in the Society. The status of a
person can be classified as Ascribed or Achieved. Ascribed Status is something
that is prevalent from birth. No matter how much he has achieved his Ascribed
status will never change and it will always define him.
·
Prevalence of Patriarchy: Essentially to exhibit their dominance a group of men
of a particular community accumulate to exhibit the outrageous act of Honour
Killing. It is performed when there is opposition or disgrace to their prevailing dominant position.
·
Khap Panchayat: It
is a Non-state legal practice mostly prevalent in “Jat”
community covering a major part of Delhi and other surrounding parts of Haryana, Western Uttra Pradesh and the adjacent areas.
It emerged as a quasi-judicial body which
pronounces grievous punishments based on
traditional Customs and beliefs. They have unwritten laws,
and their decisions are illegal, Unconstitutional and opposed to public
morality. Some punishments include nullifying the marriage, declaring the married couple as
Sapindas, permanently barring them from entering the village, coercing the girl
to divorce her husband or death[4].
·
Inter Caste Marriage: Marriage
is of two types, Endogamy and Exogamy. Endogamy is
allowed, for instance, marriage within Jati and
Exogamy is not accepted, for example, marriage within Gotra. If there is a wedlock out of
love chosen by the person outside the tribe or clan then that results in Inter Caste Marriage which is unacceptable
by parents, relatives and is prohibited.
·
Fear of Society: If a
woman is divorced or is a survivor of rape then
along with her the whole family will be falsely accused and faced with
humiliation. In such situation willingly or unwillingly to protect their rank
and reputation in the society the women will be coerced to commit suicide or
murdered by her own family members.
·
Homosexuality and Living Relationships: Even though law doesn’t prohibit love within same sex and
living together without getting married, it is difficult for family and society
to accept these
cultures and
it results in inundation of allegation and outrage from family[5].
Legal
Framework in India:
India
has recognized honour killings as heinous crimes deserving stringent
punishment. However, the legal framework's effectiveness in addressing this
issue remains questionable, primarily due to the lack of a specific law
exclusively targeting honor killings.
Constitutional Perspective
The
Constitution of India: More than men, women are considered as
main subjects for Honour Killing. The following are the provision protecting
against such gender and caste violence -
a. Article 14 (Equality before law and Equal protection in the eyes
of Law)
b. Article 15 (No
discrimination based on religion, race, caste, sex
and place of birth)
c. Article 19 (a. Freedom of
Speech and Expression)
d. Article
21 (Right to life and Personal Liberty)
These
articles
must be read in consultation with the Directive Principles of State Policy
Article 39 clause a, which states that there must
be equal opportunity for both men and women in having an adequate means of
subsistence.
Acts that rule Honour killing:
As
specified earlier there is no specifiv laws, still the law that is existence in
genral can be used to deal with honor killing and they are:
I.
The India Peal Code, 1860:
The Indian Penal Code (IPC) provides provisions to
prosecute perpetrators of honour killings under existing laws. Sections 299 and
300 define murder and prescribe punishment, while Section 307 addresses
attempted murder. However, proving honour as the sole motive can be
challenging, making it difficult to bring the perpetrators to justice. The
perpetrator can use the defense that he has acted
under sudden incitement, and it was not foreseen or planned. To
protect the interest of the aggrieved person the
following laws are governed:
·
Section 120A and 120B (Criminal Conspiracy and its
Punishment also read with Section 34 and 35 existence of Common Knowledge or Intention)
·
Section 299 (Culpable Homicide not amounting to
Murder) and Section 304 (Punishment)
·
Section 300 (Culpable Homicide amounting to Murder)
and Section 302 (Punishment)
·
Section 307 (Attempt to commit murder)
II.
The
Indian majority Act, 1857: Under
Section 3 of the said act, a person attains the age of majority after
completion of 18 years and in case of guardian appointed
by court the age of majority is 21 years. But in practicality even after
attaining the age of majority the young men and women are forced to be separated and married to persons of their respective
clan by institutions like Khap Panchayats.
III.
Hindu
Marriage Act, 1955 and Special Marriage Act, 1956: Section 5 of the Hindu Marriage act forbids
marriage within Sapindas or other degrees of prohibited relationships,
but it does not prevent
an individual to marry a person outside caste or of his own choice. The
registration of these Inter Caste marriages is
governed by the Special Marriage Act.
IV.
The
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: This act was enacted
mainly to protect Dalits and Adivasi people from
Assault, Dishonor, Sexual harassment of
women and ousting a person from society in case his family, relative, village
or society deems the act of Inter caste marriage or marriage outside their
social hierarchy to be disgraceful[6].
V.
The
Prohibition of Interference with the Freedom of Matrimonial Alliances Bill:
The Prohibition of Interference with the Freedom of
Matrimonial Alliances Bill, introduced in 2011[7],
aimed to address honour killings directly. The bill proposed severe penalties,
including the death penalty in extreme cases. However, the bill has not been
enacted into law, leaving a legislative vacuum in dealing specifically with
honour killings.
Though there is no discrete legal
provision governing Honour Killing in India and as we are using other laws, the
government has also taken various steps specifically for honour killing and
they are:
1. At
present, The Rajasthan Legislative Assembly has passed a bill in 2019 on “Prohibition of Interference with
the Freedom of Matrimonial Alliances in the Name of Honour and Tradition”
which is pending for Governor’s ascent[8].
2. The
history of this issue was first addressed in Rajya Sabha in 2009 where members
proposed a need for a distinct law to protect the affected persons from crimes
related to Honour.
3. The
landmark decision on March 2010 in the case of Manoj and Babli led to the
recommendation of the “The Indian Penal Code and certain other Amendment
Bill” by Law Ministry. It highlighted the execution of the person who
caused dishonor to the family without considering the harassment faced or
tolerated by that person.
4. The
Legal aid of All India Democratic Women's Association (AIDWA) in August 2010
created a bill covering all the neglected rights like assault and battery faced
by the aggrieved person in addition with murder
which was not previously addressed in the proposed
bill.
5. The
Law Commision of India in its 242nd Report, proposed another version
of this bill on “Prohibition of Unlawful Assembly (Interference with the
Freedom of Matrimonial Alliances) Bill, 2011” which emphasized
restriction and ban on Unlawful Assemblies like
Khap Panchayat. Until a formal law was enacted, in
March 2018 Supreme Court issued preventive measures to prevent
the crimes related to Honour.
Role of Judiciary:
The judiciary is essential in interpreting the law, completing any gaps,
and guaranteeing justice when it is quiet on a particular issue. In order to
fill in the gaps, judges use judicial interpretation, drawing on previous
rulings, statutes, and legislative purpose. They could evaluate competing
interests, take fair relief into account, and suggest conditions. The court's
flexible decision-making ensures that the law is still applicable in the face
of societal shifts and advances the continuous growth of legal concepts. In
essence, the judiciary serves as a guardian of justice, stepping in to provide
clarity and fairness when statutory laws fall short. Same
way in the case of honour killing the court has played a vital role.
Ø In Manoj Babli case,
27 May 2011[9] the court of Karnal District for the
first time considered Honour killing as a heinous crime by punishing five
perpetrators with life sentence and stated that Khap Panchayat does not have
the authority to murder a married couple even though they believe that eloping
and marrying a person of different caste is disgrace to the honor of the family[10].
Ø In a 2017 case[11],
the court held that individual’s right to choose
is embedded under Article 19 of the Constitution and is not expected to capitulate to ‘Categorized
Honour’ or ‘Combined thinking’.
Ø In a 2010 case[12],
the court held that the right to dignity cannot
be exercised in its complete fairness if it's
separated from the Individual’s freedom to choose. So, an individual’s choice should not
be stalled unless there is express or implied limitation imposed by law[13].
Ø In Shakti Vahini v.
Union of India, in this case the court issued some guidelines which are as follows, the police must prepare list of places where Khap Panchayat is
still in existence, the Secretary of Home
Department must provide immediate police protection
in case of likelihood of such incidents. If the
Police officer finds out that a Khap Panchayat is likely to form in a
particular locality, then he must actively intimate
to his superior officers. Despite adhering to these measures if the police officers are unable to
curb the assembly of Khap Panchayat then an order must be issued under Section
144 of the Code of Criminal Procedure to prevent the same. A preliminary
enquiry to be conducted by the Additional Superintendent of Police while
providing immediate assistance to the victims and recording their details. Upon
receiving the enquiry report an FIR under Section 151 of the Code of Criminal
Procedure should be filed against the perpetrators
who are coercing the couple and any negligence on the part of Police Officers
will be considered as misconduct for which the department
will be liable[14].
Ø
In Lata
Singh v. State of Uttra Pradesh, the court held that Right to Marry a
person of his own choice is a freedom incorporated under Article 21 of the
Constitution’ It further validated Inter Caste Marriage[15].
Ø
In Bhagwan
Dass v. State (NCT) of Delhi, the court held that Honour Killing does
not involve any honor and are barbaric cold-blooded murder practiced by feudalist society. It should be
considered as a rarest of the rarest case and the perpetrators
should be penalized with death penalty.
Ø
In B.
Dilipkumar v. The Secretary to Government, the court administered every
district to construct a special cell for dealing
with cases relating to crimes on Honor. It further added to keep a watch on the
active cases, solve the issues by addressing them
immediately, alerting the magistrate by framing a charge sheet, trying to solve
the issue by mediating and reserving a special fund for immediate assistance.
Ø In Udumalpet Honour
Killing Case, Sankar aged 22 of a Dalit
community eloped and married kowsalya aged 19 year of Thevar a dominant
community. The father of the daughter, unable to
bear this disgrace, murdered Sankar. The court
acquitted the accused on the basis that the prosecution failed to prove the
charge of conspiracy beyond a reasonable doubt[16].
Ø The Love Jihad
Controversy, which can be traced back to 2009 where religious groups
like Vishva Hindu Parishad and the Shri Ram Sena in Kerala
forced women of Hindu origin to convert to Islam if they want to marry a men of that religion. In 2020, a Muslim man in Faridabad gunned down a Hindu woman outside college
campus as she refused to accept his marriage proposal[17]. Apart from these there are various
instance where women of Hindu origin are lured or abducted and forced to convert into
Muslim religion for the sake of getting married. The Uttar Pradesh
Prohibition of Unlawful Conversion of Religion Ordinance was
passed in 2020 which prevents conversion from one religion to another as
felonious for the purpose of getting married. It has been termed by many Muslims as discriminatory law even though this
ordinance does not prevent legitimate and willful
conversion by woman[18].
Problems and Rebuttals:
There
are several obstacles in the way of putting current legislation into practice.
The judicial procedure is hampered by societal pressures, witness intimidation,
and victims' and their families' unwillingness to come forward. Attempts to
counteract this threat are complicated in many communities by the strongly
embedded patriarchal and caste-based institutions.
Opponents
contend that it is essential to have a thorough and unambiguous legislation
against honor murders. A statute like that may define the term clearly, outline
the penalties, and set up safeguards for witnesses and victims. Furthermore, in
order to alter people's perceptions and refute the idea that honor killings are
permissible, it is imperative to implement successful awareness campaigns and
community engagement initiatives.
An Appeal for Wide-Reaching Legal Reforms:
India
is facing a growing need for significant legislative reforms as it struggles to
address the ongoing issue of honor murders. Although these offenses are
technically covered by current legislation, there are still
implementation-related practical issues. This legal gap might be filled by a
specific statute that forbids honor murders, providing a more sophisticated and
focused strategy to address this societal threat.
A
legislation of this kind need to define honor murders precisely, impose harsh
penalties, and set up procedures to safeguard witnesses and victims. It may be
possible to create fast-track tribunals or specialized courts to streamline the
legal system and guarantee prompt justice.
In
addition, the government has to give priority to information programs that
question cultural norms and refute the false belief that honor killings are
permissible. Education initiatives should be put in place to support respect
for personal preferences, tolerance, and gender equality.
Conclusion
Honor killing are still a serious social problem in India
that need immediate attention and extensive legislative changes. Although such
offenses are technically covered by the current legal framework, there are
still implementation-related practical issues. Strong awareness efforts
combined with a specific law against honor murders can help break down the
systems that support this kind of violence. India has to address this issue
head-on in order to provide justice and protection for all of its residents if
it is to live up to its aspirations of becoming a progressive and inclusive
country. Although the road to ending honor killings is a difficult one,
advancements may be made if the public, civic society, and legal authorities
work together. Even though innumerous cases are witnessed and prosecuted by
the court regularly, there is no proper statutory law for protecting the
Victims and the judgments are laid down based on
precedents. It is the duty of the Legislature to enact a separate law or bring
an amendment in Indian Penal Code regarding the same. A separate forum or
commission must be set up in each village and
illegal institutions like Khap Panchayat to be
stamped out. It is the duty of the state to administer the working of
commissions and monitor the activities of the Police officials.
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Article Information
A CRITICAL ANALYSIS OF HONOUR KILLING IN INDIA
Authors: BHARGAVI P
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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