Pratiksha Baxi's thought-provoking comment on my earlier post 'New Law on Honour Killing?' deserves notice, hence I am posting it separately here. As she outlines, any legislative measure to tackle violence against couples in the name of family honour must be multi-dimensional. It will have to look at the laws against rape, kidnap, theft etc. It will have to amend the Special Marriage Act, something this blog has discussed in the past [See also here and here]. It will have to deal with the police force, which is often itself culpable. One hopes that the nuances Pratiksha points out are noticed, and any response is educated rather than knee-jerk. Her comment is pasted below:
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.