Tuesday, August 25, 2009

New Law on Honour Killing?

Some Rajya Sabha MP's recently demanded a special law on honour killings by caste panchayats. Although the Home Minister seems to have rejected such a demand, some women's groups think it is necessary. But why do we need a special law? The IPC has a crime of murder, which clearly covers all cases of honour killings (unlike 'sati', which was sometimes passed off as suicide). Individuals who are involved can be prosecuted as abettors.

The proposed law will probably do the following:
- make guilt communal, rather than individual. So, all members of the panchayat, by virtue of their association, will be deemed guilty, whether or not they supported the killing.
- contain a reverse onus clause, allowing the court to presume guilt until proven innocent.

We have seen this before, in a plethora of special laws dealing with violence against women and dalits. Mostly, they have managed to trample upon civil liberties without making any noticeable difference to conviction rates. If anecdotal evidence is anything to go by, conviction rate under these special laws is lower than that under the IPC. [A centre at the NLS was working on assessing the impact of special criminal laws protecting dalits - does anyone have access to the report? Statistics may prove anecdotal evidence wrong.] Their apparent failure is unsurprising, because they misdiagnose the problem. Honour killings are rampant not because current laws are insufficient, but because our criminal justice system is rotten. Make all the special laws you like, and do away with as many traditional liberties as you may, honour killings (and other atrocities against vulnerable groups) will go unpunished unless there is a professional, independent, efficient and unbiased police, prosecution and judicial service. We must resist the temptation to see draconian criminal laws as the panacea all our ills. Honour killings must stop, but we must insist on more than lip-service - which, experience shows, any special law is bound to become.

Addendum: perhaps one useful addition that can be made to the IPC is the criminalization of the use of force in order to get someone married against their will or to prevent them from marrying someone they are legally entitled to marry. There is no law which deals with this issue and a special legislation towards this goal can secure the right to marry.


Alok said...

thought provoking piece Tarun.

But I think your addendum contradicts your main piece.

If I understood your argument correctly, merely changing a law to make punishment harsher or creating new crimes is not enough if such change is based on a misdiagnosis of the problem in society.

Whatever force is used, whether it is physical violence or deprivation of liberty, it can already be tackled under the existing provisions of the IPC relating to such offences against the person. More often that not, it is societal and family pressure, subtle but overwhelming that ends up compelling people to marry someone they don't really want to. If any force is used, there is ample provision in the IPC to deal with it, provided of course, as you pointed out, our crim justice system is reformed.

V.Venkatesan said...

Why new law is necessary? I think Kirti Singh makes it clear that it is required because existing laws are inadequate to deal with excommunication, (and the resultant isolation and economic deprivation of the parents of the couple and couple themselves) caste panchayats, etc. While it can be suggested as the HM has done that honour killings can be treated like any other murder under IPC, it is the related crimes that go with honour killings which need to be tackled in order that honour killings stop. I think Tarunabh's post misses this point, but I agree with him on the Addendum point. It doesn't contradict his main thesis, which I think, ignores the essential argument of Kirti Singh.

V.Venkatesan said...

And also the glorification of honour killings, against which there is no law. It is true law is not a panacea. Women's groups too concede this; they want a law to aid their movement for social reform. The Sati Act is an example. Recurrence of Sati incidents occasionally does not prove that the law has been ineffective. It has certainly raised awareness, and the number of incidents has been on the decline. If the Sati Act also criminalises glorification in terms of puja in temples, there can be real progress. Is the Sati Act being seen as incompatible with individual rights? I doubt. I don't see any harm in activists seeking the assistance of a special law to bring about social reform. Take Dalits' entry into temples. There is Constitutional protection. Yet Dalits do complain of discrimination and denial of admission to temples. Obviously, we need both the law/Constitutional protection and a social and political campaign in favour of social reform.

maneesh said...

Here are some questions that I wish could be answered:
a) How do you punish an entire panchayat, where the total number sometimes runs into hundrerds?
b) What about social boycott? As a first step, panchayat ortracise the love-lorn couple and their families. What if no shop in the village sells them anything?
C) Also, since every villager or panchayat member has a hand in the murder, how do you decide whom to prosecute and whom not?
D) To what extent is the gullibility of the leaders of the panchayat?

V.Venkatesan said...

Maneesh's concerns are really problems that will come up during the drafting of the law, and need to be addressed; they are not arguments against the need for a law.

Tarunabh Khaitan said...

a liberal response to the helpful comments above:
- alok, there is no law against forced marriages, which is a serious violation of individual autonomy. on any reading of liberalism, it ought to be criminalised. my argument is not against all criminalisation, but only that criminalisation is the most drastic form of state action that needs very special justification (the harm principle, mostly). forced marriages qualify.
- VV, ostracisation is a problem - it also violates individual autonomy. however, there are competing concerns about the problem of allocating guilt (Maneesh's point) and the individual's right to freedom of association (which includes the freedom not to associate). it therefore does not qualify for the higher criminalisation threshold, although civil remedies are possible (even desirable), quite comparable to antidiscrimination measures. although communal penalty is problematic in civil cases too, it is relatively less problematic than criminal ones. in any case, even civil communal penalty can be considered only if the individual option is foreclosed.
- glorification may be undesirable, but very strong free speech interests are involved. law should keep out of it - state should counter it with more speech (education, campaigns), but not prohibition.

Pratiksha Baxi said...

There has been a trenchant critique of the term “honour crimes”, which was first articulated by feminists in Pakistan, when they coined the slogan “there is no honour in killing”. The critique was that the phrase “honour crimes” describes the crime from the point of view of the perpetrator. In India, scholars such as Uma Chakravarti have argued that we must look at these crimes as a form of custodial violence in the domain of intimacy. In Britain, black feminists describe honour crimes as a form of domestic violence to resist the racism that inevitably followed the ascriptions of violence to entire cultures. This construction of honour crimes as naturally inhabiting certain national patriarchies as versus others is found in a judgment by Justice Katju who says:
The barbaric practice of “honour killings” that is, killing of young women by their relatives or caste or community members for bringing dishonour to the family or caste or community by marrying or wanting to marry man of another caste, community or whom the family disapproves of, is frequently reported to take place in Pakistan which is a State based on feudal and communal ideology. However, this Court has been shocked to note that in our country also, which boasts of being a secular and liberal country ‘honour killings’ have been taking place from time to time, and what is deeply disturbing is that the police and other authorities do not seem to take steps to check these disgraceful and barbaric acts. In fact such ‘honour killings’, far from being honourable are nothing but pre meditated murder (Sujit Kumar and others v State of UP 2002 (45) ACC 79 at 80).
Even the state discourses on “honour killings” in countries like Britain name the violence as “so-called honour crimes”. The first problem therefore is of naming.

The issue is not exhausted by caste panchayat’s murder machinery. Once we begin to look at the issue different realms of law are evoked in the domain of family, custom, community, state and international law. For instance, many scholars such as Prem Chowdhury, Uma Chakravarti and Perveez Mody have pointed out that the laws on kidnapping and abduction are used with impunity against adult couples who elope against the wishes of their families. The law on rape has also been used by parents in such cases. In such cases, the police hunt the couple down. The woman is forced to break off her relationship or marriage. If she does not agree, she may face criminal charges of theft from her parents and the man is arrested on charges of abduction, kidnapping and/or rape. The woman is often sent to a state run home or as I have documented in my doctoral research to jail on charges of theft and abating her own rape and abduction. The situation gets even more complicated when the girl is a minor. The reality is that there is a cultural context is permissive of child marriages but punitive towards young people who marry of choice.

The crux of the matter is that the right to marry [if, when and whom] is denied in customary contexts, made horribly difficult by state law and defied in diasporic contexts. In Britain South Asian families hire bounty hunters to track down couples. It is highly difficult to rescue a British national from the interiors of India or Pakistan where she is forced to marry someone from the community against her wishes. It is difficult to find evidence against the natal family. If there is a move to legislate this issue, there should be a wide scale and informed discussion on how to amend the law and lessons be learnt from countries such as Britain and Pakistan. The state must allocate resources for the protection and rehabilitation of couples on the run. Moreover, we must not forget that the Indian state often behaves like a bounty hunter and mimes caste panchayats – hence, the problem is how to bring justice to the context of legal pluralism which subjects women to competing forms of subjection.
Pratiksha Baxi