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Published : June 14, 2011 | Author : sanjana
Category : Criminal law | Total Views : 3361 | Unrated

  
sanjana
Sanjana Mittal I am a student of fourth year in Symbiosis Law School.
 

Cultural Crimes: The Law It Is And The Law It Ought To Be

India is a mosaic of various cultures and institutions. Each system is unique in itself instilled with its own rules and regulations, brackets of which govern the acts of practitioners of such institutions. In a way it is good because it disciplines the people and streamlines their efforts in a particular direction. Culture to person is what chisel and tinsel is to a stone. Just as a raw stone is molded into a beautiful sculpture by the craftsman with the help of his tools, similarly the society carves a person’s social and moral aptitude. The way a person interacts with others and handles the situations is a lot influenced by the culture a person has been brought up in.

Cultural boundations are good till they act as disciplining factors but not if it acts as shackles. As long as the culture promotes the individual to follow right path it is a valid culture, but, if the same culture forces the individual to follow only one path irrespective of whether it is reasonable or not such culture acts not as a promoter but as inhibitor of the growth of society. Increase in rate of crimes such as honor killing, discrimination based on sex, dowry deaths etc. are indicators that there are loopholes in the existing legal patterns which have given way to execution of not so ethical and arbitrary practices of the conformists. Indian legal system has always been wary of venturing into or handling personal or customary laws. Till it becomes inevitable to do so, neither judiciary nor legislature tries to modify or amend personal laws. One major shortcoming of this hitch has been a substantial rise in the number of honor killings.

Honor killing as the name suggests is the intentional murder of a family member (generally female members) by other family members due to their belief that the deceased has brought some disgrace to the family. Human Rights Watch, an NGO in New York has defined Honor killing as, “Honor crimes are acts of violence, usually murder, mostly committed by male family members predominantly against female [relatives] , who are perceived to have brought dishonor upon the family. A woman can be targeted by individuals within her family for a variety of reasons, including: refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce — even from an abusive husband, or (allegedly) committing adultery .The mere perception that a woman has behaved in a specific way to "dishonor" her family, is sufficient to trigger an attack.” Some of the other major reasons recorded are, inter-caste marriage, cross religional marriage, girl eloping without parent’s permission, pre marital sex, rape victim, same gotra marriage or relation with same sex. Although honor killings may not be restricted to only female members and may be directed against any member of the family who is presumed to have brought dishonor to the family by his actions.

To understand honor killing it is important we look into the history of its emergence. Honor killing is said to have been originally practiced in ancient Rome where male family members took actions against female adulteress. As far as India is concerned, the concept of honor killing was unknown in Vedic era. Though people preferred to marry within their community, there were instances of inter-community marriages also. Shifting over to the ancient Indian period inception of idea of honor killing can be seen during the mughal period. Mughal emperors were known for their devilish attitude towards women. They introduced the concept of harems which forced the Hindus to kill their daughters to protect the dignity of family and their daughters. This was a form of honor killing whereby daughters were killed not because they tried to choose their own life but to save their lives from turning into hell and to prevent their daughter from being the genesis of the race which was their bête noir. Though, this barbaric practice was carried out on a much higher scale between the period of 1947 to 1950. During the time of partition Hindu girls were forced to marry Muslims or vice versa or were often dishonored. The family members then traced those girls who were forced into such marriages and killed them or killed them beforehand only. This practice was somewhat similar to that of Mughal period, but the ratio in which it was practiced was much higher. The type of honor killing which is being practiced today, owns its genesis to the caste system. Caste system was originally formed to differentiate between different types of work people did. Though, it now it has taken the ugly form and is being used to discriminate between people themselves. The higher caste looks down on the lower caste people and any acquaintance with them is forbidden, thus giving birth to crimes such as honor killing.

So far, the crimes of honor killing have been dealt with, under Section 300 of the Indian Penal code, i.e. for commission of murder with life sentence, death or fine, Section 307, i.e. attempt to murder, Section 120 A and B for being party to criminal conspiracy and Sections 107-116 for abetment of offences such as murder or culpable homicide. Internationally, there are many conventions and covenants which lay emphasis on protection of honor and dignity of women. The Convention on elimination of discrimination against Women, clearly states that “States Parties shall take all appropriate measures:(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;”

Commission on Human Rights, in its resolution expressed concern over rise in number of honor killings; International covenant on civil and Political rights, Universal declaration of human rights and many others lay emphasis on equality and equal protection of law.

Despite of these laws, a lot of organizations like, All India Women’s Democratic Association (AIWDA), have been demanding for a separate law to deal with the crime of honor killings. As of now the people accused of having committed honor killing are dealt with as murderers under the provisions of IPC. AIWDA has even made a draft containing relevant provisions pertaining to the matter. The draft gives a lucid definition of honor killing and aims to make choosing one’s life partner a fundamental right. Apart from this, the draft also takes into account activities precedent and subsequent to the act of honor killing. According to AIWDA activists, honor killing cannot be defined all by itself and be punished only under the charge of murder. Acts such as physical, verbal, mental harassment need to be prevented as well. The draft also puts the onus of proof on the accused and the oral evidence of the couple should be considered as valid.

A draft bill known as Indian Penal Code and certain other laws (amendment) bill, 2010 has also been prepared by the Home Ministry, which seeks to bring an end to the plethora of cases we daily hear of. The bill has proposed amendments in the Indian Penal Code, Evidence Act and The Hindu Marriage Act. It also seeks to put the onus of proving innocence on the guilty and has proposed the insertion of fifth clause in section 300 of IPC, thereby defining culpable homicide as “murder done by any person or persons acting in concert with, or, at the behest of, a member of the family or a member of the family or a member of the body or a group of the cast or clan or community or cast panchayat.” The bill though an appreciable initiative on behalf of the government, cannot be considered as a product of thoughtful and sagacious effort of uprooting the despicable crime as it has demeaned its own effectiveness by making the entire community associated with the culprit liable, instead of pinpointing the actual culprits. Not only this, the definition of dishonor also does not include, many, not so evident reasons of murder which otherwise are considered as causes of bringing dishonor. It still needs to be reviewed carefully and cautiously.

Where on one hand government is making efforts to eliminate this evil from the society there are certain social elements which instead of supporting the cause are rather acting as hurdles. For example the Khap panchayat of Haryana is head over heels after to getting an amendment passed in the Hindu Marriage Act and banning Same Gotra marriages or marriages between the people of same clan. These khap panchayats act as kangaroo courts deciding matters of villages according to their self made rules and regulations which may or may not have any nexus with the law. The politicians though, have vested interests in these panchayats, as the latter being the fictitious rulers of the rural community, secure public vote for the politicians, thus they cannot afford to severe relations with them by acting against their wishes. According to the panchayat, people belonging to same gotra are like brothers and sisters and hence their marriage is not acceptable. Moreover, it is also stated that same gotra marriages may lead to genetic disorders. The issue was made a prestige issue by the Khap community of Haryana, after the rejection of Delhi, Punjab and Haryana High Courts to pass any amendment in the act which declare to resort to bandh if amendment was not made. It then took a political color with introduction of the Khap bill in the parliament, which as of now is in pipeline. The bill has brought the politicians in a limbo, thus, leading to a demurred attitude towards the issue of amendments as well as matter of honorable killings.

What is inferable from all these futile efforts of government is that it though has taken notice of the crime prevalent in the society, but, still has not understood the severity of the problems faced by a common man. It is unable to understand the very basic fact that crime such as honor killing are more like cold blooded crimes and if not eradicated as soon as possible, may shake the foundations of Indian society. As goes Newton’s Third law of inertia “every action has a reaction”, it is not possible that the generation now subject to the sinister actions of the handful of brutes will stay nonchalant for long. It will rise as the nemesis of the generation now putting them through this hell.

So far as the question of a new legislation is to be considered, practically speaking, we do not need any law to regulate the commission of crime of honor killing. The reason is that the remedy under Section 300 of IPC is sufficient to punish the crime. Honor killing is more of a social evil as it is guided by traditions and values prevalent in a society. What is truly required is proper implementation of the existing legislation, promotion of social awareness and literacy, emphasis on preventive policing rather than detective policing by the police department and increased vigilance in the areas more prone to such dangers. But even if, a new law is to be brought into force, it should be one which gives justice, not after the harm has already been done but security in anticipation. A complaint by anyone who fears of being murdered for the sake of honor should be considered as the basis of initiating investigation. The statement of the victim should be admissible as evidence, similarly as that of a rape victim is admissible. Initial checks will prevent original act, therefore, any incidences such as mental or physical harassment, should be punished at the abecedarian stage and bailment procedure of the accused of such petty crimes should be tougher. NGOs should be given the prerogative of informing about any such acts which come to their knowledge.

Apart from this judiciary also needs to take up a more stringent approach towards the matter. In the case, Lata Singh Vs State of Uttar Pradesh and others, Supreme Court did address the problem of honor killing and directed the administration or the police authority to ensure 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 anyone 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.” The court considered it as “barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment.”Though its not very often that the court goes beyond the ambit of defined laws to be able to take up criticism of people and yet strike down the obsolete traditions and customs. The courts are flooded with a plethora of cases waiting to be dispensed with sanguinely. By the time courts take up the case the evidences are either fabricated or destroyed leading to exculpation of the accused. The courts need to speed up the decision making procedure. Thus the onus of fighting with this crime is not only on the legislature to pass the required law but also on the executive to ensure effective implementation of the law and judiciary to ensure that justice is dispensed with. Fourth wing of the state (read as media) also needs to open its ‘third eye’ and support the government enthusiastically.

It is not only a legal crime but a social evil. To fight with it is important that the government strikes at the psychological quotient of the people. The mental blog of the people, refusal to break free from the shackles of ancient dogmatic views that women are chattels and the fear of dispossession by the society in case any the female member tries to break the code of conduct are the main reasons for people resorting to this heinous crime. Though, it should be noted that this trend is not always the result of constricted mentality of the society but is also often politically motivated. Certain demagogues try to cash such incidents, whereby a girl has entered into inter- cast marriage or dwelled into any other kind of activity which is unacceptable to the community at large. They on purpose instigate the mob to mortify the family of the girl and pressurize them to kill the girl so as to save the honor. It is therefore important that the sentiments of the mob at large are appealed to. The endless efforts of freedom fighters and later members of Constitution’s draft committee could eradicate the practice of caste system on legal grounds by placing everyone on the same footing, but, it could not mop it from the minds of people and society at large. The stigma was transferred from generation to generation, may be not with its original fervor but good enough to sustain such despicable crimes.

I sometimes wonder what reason can be strong enough to drive people to the level of insanity such that they exterminate the lives of their own loved ones. Can the fear of being ostracized by the society over power the hopes of parents to see their children healthy and hearty? What level of despise infused by clique of monomaniacs displace the love a mother bears in her heart since the day her child is born? Its an irony, that the country which is known for being a land of strong family ties and history of which is colored with the tales of sacrifices parents have made for their children, is now become a torch bearer of such cultural crimes. Well, may be the tenacity culture enjoys on Indian society answers as to why cultural crimes are most prominent here. But, no amount of justifications on part of these demoniacs can justify the reason of resorting to such deplorable acts. Its time we face it, that the preface” honor” does not make “killing” any honorable which still remains a despicable, barbarous and a monstrous act. A legislation if comes into effect needs to be comprehensive and take under its wing all the activities even distantly attached to the crime of honor killing. Till the time, we do not have such legislation; we should not be mute spectators of such crimes which are not only violative of the fundamental rights life and liberty but also deplorable to the human community at large. Its time we see the crime against one as the crime against all and join hands to fight with it with fervor strong enough to stop any commission of such crimes in future. A good nation is known by its culture. Its important we make our nation culturally strong not a slave to its unacceptable demands.

***************************
# "Violence Against Women and "Honor" Crimes". Human Rights Watch.
# Article 5 of CEDAW.
# ( 2006 (5) SCC 475)

Authors contact info - articles The  author can be reached at: sanj@legalserviceindia.com




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