Human Rights, Honour Killings and the Indian Law: Scope for a 'Right to Have Rights'

Author(s): SNEHA ANNAVARAPU

Source: Economic and Political Weekly, Vol. 48, No. 50 (DECEMBER 14, 2013), pp. 129-132
Published by: Economic and Political Weekly
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NOTES

international law to address this macro

Human Rights, Honour social malaise. Is there a feasible mecha

nism through which we can address this

Killings and the Indian Law invidious crime across all nations?

The language of human rights - best

Scope for a 'Right to Have Rights' represented by the Universal Declaration
of Human Rights (udhr) - is pervasive
in ethics, law, political theory, sociology,
SNEHA ANNAVARAPU anthropology and other domains. The
influence of human rights is tangible,
This article argues that in the especially in the fields of international
"honour killings" abound. Welch
absence of normative criteria that relations and law. While a detailed engage
Thereman
are and
several definitions
Hossain of
make a valid ment with all the dimensions of the human
can identify a set of universal
observation that most definitions of rights is outside the purview of the pur
human rights, the "right to "honour crimes" or honour killings ariseposes
by of this article, I will explore the adju
have constitutional rights"thecan dication of khap panchayats in matters
way of illustration (2005: 7). Accord
relating to marriage. It looks at the Inter
ing to the Human Rights Watch, the mere
take on the onus of being that
perception that "a woman has behaved
national Bill of Human Rights which deals
universal human right. In the
in a way that 'dishonours'" her familywith
is the aspects of the "right to marry"
case of honour killings, thesufficient
right to trigger an attack on her life (to borrow Martha Nussbaum's (2010)
to have and, more importantly, phraseology) and will provide a plausible
(Kirti et al 2011: 344). Following Nasrullah,
solution to the debate surrounding uni
Haqqi, and Cummings,1 for the purposes
access legitimate fundamental
versalism and cultural particularism in
of this article, we will be defining honour
and legal rights is under severe
human rights discourses.
killings as those murders that occur when
doubt. A universal standard
I base my arguments on the premise
a person (or persons) transgresses norms
framework - such as a reading of imposed by her/his community in the
that the "aspirational" idea behind the
"right to have rights" would have name of preserving honour as culturally
documentation of universal human rights
prescribed. These norms may be with
is put under severe duress owing to the
it - justifies the very purpose of
recurrent and recalcitrant presence of
regard to sexual autonomy, marriage, reli
human rights itself. The origin of gious conscience, caste, property, etc, honour
all killings in various countries and
human rights, thus, shifts from that the idea of "individualism" and
of which construct honour in ways that

the matter of "being human" to this article will explore. "choice" is challenged by the prevalence
In 2000, the United Nations (un) of informal social systems which rely on
a matter of social, political and
estimated that there are around 5,000ideas of "culture" - however contentious
legal constructivism. honour killings every year worldwide that term may be. The very fact that
(Chesler 2010: 3). In India, statistics from honour crimes stand at the confluence of
2010 indicate roughly 900 reported "competing spheres of legal subjection
honour killings in Haryana, Punjab and simultaneously - customary laws, family
Uttar Pradesh, while additional 100-300law, criminal law and international law
honour killings took place in the rest of - makes this a very challenging case to
the country (Chesler and Bloom 2012: 45). study" (Baxi et al 2006:1240).
Despite international conventions like An analysis of honour killings in India
the Convention on the Elimination of All would be incomplete without an under
Forms of Discrimination against Women standing of the origins of social systems
(cedaw), honour killings in countries that typify and actively promote this
such as Jordan, Pakistan, India, etc, aresocial phenomenon. Currently, honour
rampant and the victims are not just killings in India are perpetrated most
women - although they are predominotably by the khap panchayats in states
nandy women - but also men who exercise like Haryana, Uttar Pradesh, Punjab, parts
certain personal freedoms and "sexual of Bihar, and Rajasthan and katta
Sneha Annavarapu (a.snehaçi@gmail.com) is deviants" such as transgenders.2 The panchayats in parts of Tamil Nadu.3 The
doing her integrated MA in the Department prevalence of "crimes of honour" inconcept of khaps is said to date back to
of Development Studies and Social Sciences, several nations (goi 2012:2-3) highlights2500 bc and is essentially an archaic form
Indian Institute of Technology, Chennai.
the relevance of using a framework ofof social administration. A khap can be

Economie & Political weekly EGE2Ü December 14, 2013 vol xlviii no 50 12Ç

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NOTES =

defined as a unit comprising 84 villages criminalise "incest",9 village courts such "marriage" is a univers
belonging to the same gotra,4 A khap as khap panchayats have taken it upon and conditions of its exe
panchayat is a council of five elders of themselves to punish individuals engag- stance are culturally
the village who look after the admini- ing in sagotra marriages since, they argue, view of marriage woul
stration of the village. With the intro- it would amount to incest (goi 2012: 4). a matter of individual ch
duction of the panchayati raj system Khap panchayats denounce marriages whereas some commu
via the 73rd and 74th Amendment Acts, that are inter-caste and violently react to case - consider it to
official village panchayats have been marriages that are intra-gotra. Both of lineage, honour and relig
established all over the country. Despite these unions are legally recognised by the that the human right to l
their legal and official status, village Constitution of India and are not crimi- honour killings, but is
panchayats in some parts of the country nalised by the ipc, i860. In fact, the more to this violence?
are heavily dominated and coerced by Hindu Marriage Disabilities Removal physical dimension to this
these informal social systems like the khap Act, 1946 was passed and enacted in or- violence? What is the rol
panchayats (Kachhwaha 2011: 298). der to reinforce this notion of choice and how does it justify killin
Khap panchayats are said to adjudicate free will in choosing one's partner (ibid: sake of honour? These
on matters related to social transgressions, 4-5). The Supreme Court reacted strong- aspects we shall cover in
marriage, property rights, inheritance, and ly against village courts in Arumugam
caste issues (ibid: 298-99). The develop- Servai vs State of Tamil Nadu (reported Tradition, Marr
ment of non-state parallel systems of in 2011) 6 see 405 (ibid: 5). As Martha Nussbaum (2010: 668) states:
adjudication has, especially after Inde- The udhr10 can be read to assert the _ m . „„
J For many, îr not most people, marriage is not
pendence, resulted in the constructions notion
of gender and sexuality, tradition and marriag
honour.5 In this article, we will explore explicit
the adjudication of khap panchayats in choice i
matters relating to marriage. other guaran
the assertion of free will and ch
Marriage as a Right when it comes to m
In India, the right to marry is a compo- the pr
nent of "right to life" as enshrined by "faith i
Article 21 of the Constitution of India, the di
It is not simply the "right to marry", but per
it is the right to marry out of choice, and wom
However, as Perveez Mody has rightly hold the
noted, in India, the idea of "choice" is Article
not individual as much as it is filial right to l
or social (2002: 226). Legally speaking, Artic
however, in the iconic case Lata Singh vs treatm
State of Uttar Pradesh (2006, sc 2522), guarant
the Supreme Court observed that, "This in nat
is a free and democratic country, and violate
once a person becomes a major he or she by th
can marry whosoever he/she likes".6 prohibit
According to the present legal system privacy
in India, citizens have a choice between includ
respective religion-based and community- tion.
specific marriage laws and general and where i
common laws of civil marriages. While the one
former unions are supervised by "per- pouses t
sonal laws", the latter unions are codi- against
fied by the Special Marriage Act, 19547 which
and the Foreign Marriage Act, 1969. The as a ba
Indian legal system, technically, allows the ri
for marriages that are sagotra8 since it The v
does not recognise gotra as being the rights a
defining unit of a family. While the Indian irr
Penal Code (ipc), 1980 is yet to explicitly is im

130 December 14, 2013 vol XLViii no 50 nrJTl Economic & Political WEEKLY

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 NOTES

activity. Punishments can be fines trace the tensions between the written itself violated in the case of denia
(nominal or substantial), ritual expiation, word and the ground reality. damental rights which are not
public humiliation (ranging from black- the State but are ensured by it. This subtle
ening of face to dipping victim's nose in A Tentative Solution distinction has immense ram
human urine), forcing her/him to host a The friction between universalism and In this debate on unive
feast for the village, beating up, and/or cultural relativism is manifest in the case cultural relativism of h
banishment from the village (Yadav 2009: of honour killings and honour crimes by would like to propose a m
17). Of course, honour killings automati- khap panchayats. As argued earlier in whereby the validity of bo
cally imply the harshest punishment of this article, it is not just the act of the remains intact much like t
all - murder. murder of "erring" individuals but it is the "quality control" that Philip Alston (1984)
In an interesting analysis of the concep- process behind the construction of honour had called for. Borrowing from Terence
tion of honour, Johanna Bond (2012) has which is the bone of contention here. The Turner's proposal of a "universal right to
argued that there are definite intersections liberal notion of "individual agency" is in difference" (Turner 1997), I borrow the
between the constructions of honour and direct contrast with the notion of collective methodological relativism to an entirely
the construction of property in societies, social agency and stringent norms. Argu- oppositional conclusion. However, while
She also uses a lens of property in order to ing that human rights are indeed natural this can be theoretically defended, it is
map gender-based violence in patriarchal rights that are not given by any particular harder to implement owing to political
societies. In the case of khap panchayats, authority, but are inherent in the fact that disinclinations. My basic argument is that
scholars (Mhatre 2010; Ahlawat 2012) one is born a human being, Jack Donnelly since in the international discourse on
have already pointed to the strong link- (1984,2007) points to the universality of human rights there seems to be a disagree
ages between land, property and norms certain basic human rights as being both ment of what constitutes "human" rights
regarding marriage as formulated by a positive and a normative issue. It is not owing to accusations of western domi
khap panchayats. Does honour have a just that there are certain inalienable nance,16 we can use Hannah Arendt's con
specific role to play in the denial of free universal rights but that it is a matter of ception of "right to have rights" although
choice? Annie George14 points out that: advantage and gain that this is the case, not in terms of citizenship as was intended
Honour is thought to reside primarily, but Elizabeth Zechenter in a brilliant analysis by her17 but in terms of human dignity and
not exclusively, in the bodies of women of "cultural relativism" (1997) also sup- the constant need to engage in a dialectic
and is maintained through female chastity, ports this claim of Donnelly's that rela- between fundamental rights and human
virtue, and subdued body language, dress, tjvjsm anci cultUral particularism can be rights. The fact that certain rights are
and demeanor. Individual honour is usually , , , . , . ,. . „ . . , ^
, , , , ,. . / abused by states in order to engage in codified m the Constitution does not auto
subsumed to family and religious or caste ...
community honour, which, typically, is unethical practices against people. matically translate i
maintained through restrictions on women's In the case of honour killings by khap tection - there is t
movements, opportunities, and life choices. panchayats, one can see that if adherence human right to
The observation about the restriction to a particular cultural practice is imposed relative fundamen
of "choice" clearly collides with liberal in the name of "tradition", the attack is not in the constitution
ideas of choice, individual agency and just on the individuals but on the institution the state to be th
personal freedoms. As S K Araji (2000) of individual choice based on a conscious that we are conce
has noted, the idea of honour is external agency protected by the tenets of a Rule of the argument o
- dependent on the norms imposed by Law which is assumed to be based on uni- terms of honour ki
an external agent - and requires the versai notions of justice and fairness. Thus, invalid by the univ
sanction of a social system. This can be it is not just the marriage that is questioned have constitutional
contrasted with a liberal view of honour but the exercise of free will in deciding constitutional rig
as being internally sourced and lying whom to marry. It is obvious that uni- privileged at the be
with the individual. Furthermore, the versai notions of justice would deem the those rights becom
single-minded focus on women indicates denial of such an exercise invalid, and Pointing to the f
a skewed notion of equitable and equal even, horrifying. However, if we take the legal system in In
access to rights.15 Baxi et al (2006) dis- standpoint of relativism, it becomes con- Baxi et al (2006) an
cuss the notion of the Rule of Law in tingent on the cultural ethos and values of modern, alien Ru
relation to the complexities inherent in that particular community. This is in vio- tional structures
a postcolonial terrain such as India lation of human rights as understood as panchayats) in India.
where the tension between the forces of something not dependent on an external the rise in "honou
"tradition" and "modernity" is evident in source or not being a privilege - an argu- against the con
informal systems such as khap panchayats. ment that Donnelly (1982) has made, while notion of justi
In the next section, we will juxtapose trying to justify the origin of contemporary attempt is to in
the legal aspects of marriage in formal human rights as being an exclusively boundaries that can
Indian law and international law and western one. The right to have rights is authenticity of an

Economic & Political weekly GOES December 14, 2013 vol xlviii no 50 131

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report by the Law Commission of India, there were seven rishis/saints who generated
Chester, Phyllis (2010): "Worldwide Trends in H
seven clans and thus, by extension, all thoseKillings",
born Middle East Quarterly, Spring, 3-11
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into a particular clan are brothers: andChester,
sisters. Phyllis and Nathan Bloom (2012}: "Hind
Muslim
5 Vishwanath and Palakonda (2011). While
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three are inextricably linked in a web ofSummer
patri 2012: 43-52
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6 See Gol (2008), 17-19. Of course, there are Conceptions of Human Rights", The Ameri
itself illegal (goi 2012). While I admit to "reasonable restrictions" to this fundamental Political Science Review, Vol 76, No 2: 303-16
the effectiveness of these solutions, unless right, such as the concept of "prohibiting degrees - (1984): "Cultural Relativism and Univer
Human Rights", Human Rights Quarterly, Vo
the international community is involved in marriage" which explicitly denounces the No 4:400-19.
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7 The first law of civil marriages in India was gov Rights", Human Rights Quarterly, Vol 29, No
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surrounding its content, the seriousness of during the British Rule in India. For details regardDorjee, Tenzin, Noorie Baig and Stella Ting-Too
ing that and other legal specifications, please refer (2013): "A Social Ecological Perspective o
honour killings will be under severe doubt
to a report by Law Commission of India (Gol 2008). Understanding 'Honor Killing': An Intercultu
which will make it harder to prevent
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Note 4. munication Research, Vol 42, No 1: i-2i.
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9 Karthikeya, "We Need Special Laws to Deal with
Dyson, Tim and Dick Moore (1983): "On Kins
It becomes hard to justify the univer Incest", The Times of India, 23 May 2009. Link:
Structure, Female Autonomy, and Demograp
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10 For the full text, please visit: http://www.
No 212) (New Delhi: Law Commission of In
un. org/en/documents/udhr/index. shtml
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11 Article 16 states that:
choice", the relativists can raise questions (1) Men and women of full age, without any - (2012): Prevention of Interference with
Freedom of Matrimonial Alliances (in the Na
pertaining to the origin of this idea of limitation due to race, nationality or religion, of Honour and Tradition): A Suggested Le
have the right to marry and to found a family. Framework (New Delhi: Law Commission of
free choice since the substance of the
They are entitled to equal rights as to mar India, Government of India).
right is articulated and that substance is riage, during marriage and at its dissolution. Helis, John (2008): "Hannah Arendt and Human
(2) Marriage shall be entered into only with the Dignity: Theoretical Foundations and Consti
cultural. However, it is harder to find
free and full consent of the intending spouses. tutional Protection of Human Rights", Journal
issues with the form of a right such as the (3) The family is the natural and fundamental of Politics and Law, Vol 1, No 3: 73-78.
right to have rights since it is an a priori group unit of society and is entitled to protec Kachhwaha, Kavita (2011): "Khap Adjudication in
tion by society and the state. India: Honouring the Culture with Crimes",
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of an "umbrella right" is hard to execute Dyson and Moore (1983) and Madsen (1991). chayat Justice among the Jats of Western Uttar
14 As cited in Bond (2012:12). Pradesh", Anthropos, Bd 86, H 4./6: 351-65.
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Journal of Social Science, Vol 1, Iss 1-2: 68-78.
whether the constitutional rights are just please read Vishwanath and Palakonda (2011). Mody, Perveez (2002): "Love and the Law: Love
16 Further accusations of how this thrives on a
and fair, but the question of how does conflation of modernisation with westernisation. Marriage in Delhi", Modern Asian Studies, Vol 36,
No 1: 223-56.
having an umbrella right to have rights
17 Helis (2008) has used such a reading of Arendt
Nussbaum, Martha (2010): "A Right to Marry",
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