Introduction:
The practice of honour killing is prevalent in many countries, including India. It originates from ancient customs and traditions that have been incorporated for many decades. The act of honour killing is committed because the families believe that the dishonorable conduct of an individual reflects upon the rest of the family members or community. Honour killing is a clear violation of the right to live with human dignity[i], which is a part of the right to life and liberty.[ii] This right has been enshrined under several domestic as well as international laws and covenants and provides a safeguard against the crime of honour killing.
Right to live with Human Dignity
The right to live with human dignity[iii] is enshrined under part III of the Constitution of India. Article 21 safeguards the Fundamental right to live with human dignity. It protects the life and personal liberty of a person and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.[iv]” This right applies to both citizens of India as well as aliens and nobody can deprive a person of this right. Article 21[v] has a wider meaning and it includes the right to live with human dignity.
In the case of A.K. Gopalan vs. State of Madras[vi], the court held that the right to life is not merely a fundamental right but also a basic right to an individual i.e. no one should withdraw life without the process of law. The important case with respect to the widening of the scope of Article 21[vii] is Maneka Gandhi vs. Union of India.[viii]The term ‘right to life or personal liberty’ was expanded significantly and it is not just meant mere animal existence. The court stated that ‘life’ is not confined to a certain limit or just the physical existence but it includes within its ambit the right to live with human dignity. No one has the authority to deprive the life of another without just and fair process of law.
On the international level, the right to live with human dignity is enshrined under various statutes and laws. The Universal Declaration of Human Rights (UDHR) has protected the right to life and liberty under article 3, which states that: “Everyone has the right to life, liberty and security of person[ix]” Also, under article 9 of the UDHR it is given that “No one shall be subjected to arbitrary arrest, detention or exile[x]” The European Convention on Human Rights (ECHR) also provides safeguards under article 2. It states the following: “Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection[xi].”
In comparison to the international laws, the Indian laws have laid down a wider meaning of ‘right to life and personal liberty’ and also included the overall well being, prosperity, and development of an individual. It safeguards the people from any type of external aggression
Honour Killing
Meaning
Honour killing is the act of violence generally committed by the family members for the dishonouring code of the family or community. It is a murder that is committed against the young men and women (mostly women) for actual or perceived immoral behaviour that is deemed to have breached the code of a household or community.[xii] Dishonourable acts that ultimately culminate in honour killing also include divorce, adultery, premarital sexual relations, and prenatal pregnancy or being the victim of a sexual assault or rape.[xiii]
Historical Evolution
Every society has historically demarcated honour killing in its socio-economic and cultural context. This fact may be established by having a glance at the history of the civilization of various countries.[xiv] The crime of honour killing is closely linked to the emergence of patriarchal social structures across Europe and Asia. Although the exact origin of such practices can be debated but the patriarchal set-up of the societies has worsened the condition of women. It was because of these structures that honour of the family and the community started interlacing with the sexuality of women. Ideas of shame and honour got associated with the possessions of the community such as land and women and men would kill anyone to protect them. Along with this, they would also kill the women if they violated the strict code governing sexual relationships. Due to these circumstances, the custom of honour killings arose as a central code that structured and regulated social relations in primary societies.
This code is still practiced in various parts of the world.[xv] It has become a general principle that women neither kill adulterous men nor are they supported by custom or law to expect, demand, or secure chastity or monogamy from the males in their community. On the other hand, men often kill on those grounds and even claim to this privilege.[xvi]
In the Middle East, the origin and roots of honour related crimes can be found during 1700-1752 B.C, in the codes of Hammurabi, in which rapists were punished with the rape of their own wives.[xvii] These are some of the most ancient laws that approve the idea that a woman’s virginity belongs to her family.
Another ancient law with regard to honour killing can be attributed to the Napoleon code of 1804 that was established under Napoleon Bonaparte. This code was designed for the crimes of passion and according to it, a man had the right to kill his wife after catching her in the act of adultery without being charged with premeditated murder. He could only be charged with other lesser offenses. This defense was only available for husband only not for wife. Similar codes were prevalent in several other ancient French colonies.
In ancient Indian history, the concept of honour killing has been seen in several occurrences. It was common to find women committing suicidal acts rather than being captured by the enemy. In the Medieval period, the women from Rajasthan royalty practiced Johar in which they set themselves on fire if their men were defeated by the enemies. By doing so, they wanted to remain chaste and uphold honour rather than becoming the slave of the enemies. Female infanticide is also a form of honour killing which is common in India.
The custom of honour killing was seen at a massive level during the partition of the country, between the years 1947 and 1950. Many women were killed to maintain the family honour. There were many cases of forced marriages where the women of the land had to marry the citizen of the partitioned land followed by the practice of hunting, where the married women who had been forced to marry a person from another country were traced and killed to preserve family honour. These women were also killed in case they came back to their homes. The partition years can be seen as the initiation of honour killing on a large scale[xviii].
Legal Initiatives
To safeguard the young generation from this traditional justice system, many legal actions have been taken. In India, Khap panchayats have played a significant role in honour killing. This is because people in the rural areas have a strong belief in the same customs and practices which the panchayats enforce.
The Law Commission of India suggested in its 242 Report on Prevention of Interference with the Freedom of Matrimonial Alliances (in the Honour and Tradition)[xix] and P. Sathasivam, Chief Justice of India, stated in the judgment of suo-motu writ petition (Criminal), ‘In order to keep a check on high handed and unwarranted interference by the caste assemblies or panchayats with sagotra, inter-caste or inter-religious marriages, which are otherwise lawful, this legislation has been proposed so as to prevent the acts endangering the liberty of the couple married or intending to marry and their family members. It is considered necessary that there should be a threshold bar against the congregating or assembly for the purpose of disapproving such marriage or intended marriage and the conduct of the young couple. The members gathering for such, purpose, i.e, for condemning the marriage with a view to take necessary consequential action, are to be treated as members of unlawful assembly for which a mandatory minimum punishment has been prescribed’[xx].
In the case of Arumugam Servai v. State of Tamil Nadu[xxi] Supreme Court strongly expressed disapproval of the practice of Khap Panchayat taking law into own hands and indulging in offensive activities that endanger the personal lives of the persons marrying according to their choice.
Honor killing is a crime committed in many countries apart from India. For example every year in Pakistan, hundreds of women, of all ages and in all parts of the country, are killed in the name of honour.[xxii] Many women face all kinds of gross violence and abuse at the hands of male family members. Many countries include honour killing as a crime under their domestic laws. There are many United Nations conventions to curb the crime of honour killing. Some of these include:
- Convention on Elimination on all forms of Discrimination Against Women (CEDAW)
- Elimination of Crimes Against Women Committed in the name of Honour, 2003
- Universal Declaration on Human Rights, 1948(UDHR)
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenants on Economic, Social and Cultural Rights, 1976
How does it violate the right to live with human dignity?
Honour killing violates the basic right to life, personal liberty, and freedom of the victims and is a clear violation of human rights. The right to life includes the right to live with human dignity, which is protected universally by law. This right is the highest form of right and it is the foundation of all the other rights. As per this, no one has the power to withdraw the life of a human being under the heading of any customary practice. Basic rights provided under the fundamental rights under the constitution cannot be deprived by the state or any person in the name of preserving honour of the family.
Conclusion
There are several domestic as well as international laws to curb the evil practice of honour killing. It may not be expressly present in any domestic or international laws but since it is a blatant violation of the right to life, it indirectly violates the other rights which are enshrined in these laws. Right to life is a wide term and it includes right to live with human dignity and honour killing violates this right because it deprives the victim of the right to life enshrined under Article 21 of the constitution of India and several other international covenants which provide safeguard against the right to live with human dignity.
References:
[i] Drishti, Article 21 of the Constitution of India-Right to Life and Personal Liberty, LAWOCTOPUS (Nov. 13, 2015) https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/#:~:text=%E2%80%9CArticle%2021%20of%20the%20Constitution,meaningful%2C%20complete%20and%20worth%20living.
[ii] The constitution of India, art. 21
[iii] Supra note i
[iv] Ibid.
[v] Supra note ii
[vi] AIR 1950 SC 27
[vii] Supra
[viii] AIR 1978 SC 597
[ix] The Universal Declaration of Human Rights, 1948, art. 3
[x] Id.,art. 9
[xi]European Convention on Human Rights, art.2
[xii] Right to life with human dignity, Shodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/89946/10/10_chapter%20-ii.pdf
[xiii] Mazna Hussain, “Take my riches, give me justice: A Contextual Analysis of Pakistan’s Honour Crimes Legislation”29 Harvard Journal of Law and Gender 226(2006), Cri. Law Journal, Dec.2013, Vol.119-part-1368, P. 187
[xiv] A Report Of The Proceedings Of The Cross Border Seminar On Honour Killing :A violence Against Women in South Asia 5( MASUM Publications, Pune, 2008)
[xv] Rabia Ali, ”THE DARK SIDE OF ‘HONOUR’, http://hbv-awareness.com/wpcontent/uploads/2011/06/REPORT-BY-SHIRKAT-GAH-The-Dark-Side-of-HonourWomen-Victims-in-Pakistan.pdf 1-49(Visited on July 20, 2017).
[xvi] Ibid.
[xvii] Eliza Griswold, “Faith of Her Fathers”, The New Republic 13-14 at 14 (February 26,2001).
[xviii] “Analysis on Honour Killing”, Lawz Bureau 10-13(August 2010)
[xix] Law commission of India, 242nd report on “Prevention of interference with matrimonial alliances (in the name of honour and tradition), (August 2012)
[xx] Ibid.
[xxi] 2011 6 SCC 405
[xxii] Law Z Vol.10 No. 8 Aug 2010 Issue 108 P.13
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