Analysis of Honour Killing: National and International Perspective with Relevant Legislations Satyajit Pattanaik BASICS OF LAW Fri, Sep 04, 2020, at ,08:31 PM There is no honour in an honour killing Introduction- Honour killing is the murder of a member of a family because of the perpetrators' belief that the victim has brought shame or dishonour upon the family or has violated the principles of a community or a religion. Generally, In India, Honour Killing is practised when one member of a family marries to a person belonging to other caste or community. That apart some other reasons for honour killing are stated below:- Refusing to enter an arranged marriage Being in relationship i.e. disapproved by their family Having sex outside marriage Becoming a Victim of rape Dressing in ways which are deemed inappropriate Engaging in non-heterosexual relations or renouncing a faith.[1] Killing for honour is still prevalent in many parts of India, though in reality there is no "Honour" in "Honour Killing".[2] Honour killing has been practised in India since ages. The caste system which existed earlier and which is still existing today has acted as a fuel to the fire of Honour Killing. The discrimination done to the people of lower caste or the people belonging to a different sect has prevailed and will continue to prevail in India's future unless uprooted entirely. History also stands as evidence that British people came to rule India but they did not dare touch our personal laws and realised that if they touched the personal laws of India then they could no longer rule the country and that would have led to a turmoil. Lord Macaulay also felt that how the Indians are attached to their morality and religious sentiments. However, the most important thing is the Indians were not ready to understand that the Concept of Morality is Dynamic and can never be stagnant. So due to such attitude, they started practising a lot of unjustified and highly condemnable acts, which led them to construct lots of hypothetical concepts one of which is "Honour." For this Honour, they do many unjustified acts and take the plea that, this was all done to safeguard their honour. Honour Killing in Other countries Europe:- Recently the issue of honour killings has risen to the extreme in Europe, prompting the need to address the occurrence of honour killings the European Parliamentary Assembly in 2009 noted that in their Resolution 1681 which noted the dire need to address honour crimes and had come to a conclusion that, "On so-called 'honour crimes,' the Parliamentary Assembly notes that the problem, far from diminishing, has worsened, including in Europe. It mainly affects women, who are its most frequent victims, both in Europe and the rest of the world, especially in patriarchal and fundamentalist communities and societies. For this reason, it asked the Council of Europe member states to 'draw up and put into effect national action plans to combat violence against women, including violence committed in the name of so-called 'honour,' if they have not already done so. Belgium:- In the year 2011, Belgium witnessed its first honour killing trial, in which four Pakistani family members were found guilty of killing their daughter and sibling, Sadia Sheikh. As a legacy of the very influential Napoleonic Code, before 1997, Belgian law provided for mitigating circumstances in the case of killing or an assault against a spouse caught in the act of adultery. (Adultery itself was decriminalized in Belgium in 1987. Germany:- While investigating criminal records for partner homicides from the years 1996-2005 period, the German Federal Criminal Police Office concluded that there were about 12 cases of honour killings in Germany per year, including cases involving collective family honour and individual male honour, out of an average about 700 annual homicides. An accompanying study of all homicides in Baden-Württemberg show that men from Turkey, Yugoslavia and Albania have a between three and four times over-representation for partner homicides, both honour and non-honour related. The causes for the higher rate was given as low education and social status of these groups along with cultural traditions of violence against women. Italy:- Similar to other Southern/Mediterranean European areas, the honour was traditionally important in Italy. Indeed, until 1981, the Criminal Code provided for mitigating circumstances for such killings; until 1981 the law read: Art. 587: He who causes the death of a spouse, daughter, or sister upon discovering her in illegitimate carnal relations and in the heat of passion caused by the offence to his honour or that of his family will be sentenced to three to seven years. The same sentence shall apply to whom, in the above circumstances, causes the death of the person involved in illegitimate carnal relations with his spouse, daughter, or sister. Traditionally, honour crimes used to be more prevalent in Southern Italy. United Kingdom:- Every year in the United Kingdom (UK), officials estimate that at least a dozen women are victims of honour killings, almost exclusively within Asian and Middle Eastern families. Often, cases cannot be resolved due to the unwillingness of families, relatives and communities to testify. A 2006 BBC poll for the Asian network in the UK found that one in ten of the 500 young Asians polled said that they could condone the killing of someone who had dishonoured their family. In the UK, in December 2005, Nazir Afzal, Director, west London, of Britain's Crown Prosecution Service, stated that the United Kingdom has seen "at least a dozen honour killings" between 2004 and 2005. Therefore, not only in underdeveloped or developing countries but also in the most developed countries in the world, the crimes related to honour are prevailing in various kinds of forms and the ultimate result is same every time. Indian and International Law relating to Honour Killings:- In India, there is no separate legislation that deals exclusively with honour killings and it is treated as murder under section 302 of Indian Penal Code, 1872. In India, for a long period, there was no recognition of honour killing. It was only from 2014 the National Crime Records Bureau treated Honour Killing as a motive for murder. This even though the National Crime Records of 2015 show that there were about 251 honour killing in India which itself is considered to be an underestimation by many women rights activists and NGOs in India. There was a bill that tried to criminalize honour killing separately in 2010 but it has not been brought into effect yet. This chapter would deal with international conventions and Indian legislations that deal with honour killing implicitly. Legal Provisions under the Constitution of India:- The Indian Constitution guarantees the rights and liberties of the individual both vertically against the state as well as horizontally against another individual. The major fundamental right that is violated by honour killing can be said to be Article 21 of the Indian Constitution that states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Since in a vast majority of the cases honour killing is due to inter-caste marriages, the prohibition to honour killing can be found under Article 17 of the Indian Constitution that states that untouchability in any form should not be practised. Moreover, this article makes untouchability as an offence punishable under law. Article 32 of the Indian Constitution provides for the enforcement of the fundamental rights of the citizen through writs. In Lata Singh vs. the State of UP[3], the Supreme Court has opined that inter-caste marriages are in the national interest as they destroy the caste system. Provisions under the Indian Penal Code:- Under the Indian Penal Code, 1860 honour killing would squarely fall under Section 300 and the punishment provided for it would be under Article 302 of the Code that Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. In Bhagwan Das v. Delhi[4] deemed honour killings in the “rarest of rare” category of crimes that deserve the death penalty. Under Section 34 of the code if an act is done by several persons in furtherance of a common intention each shall be punished as if the act is done by him alone. Moreover, honour Killing would also attract the provisions of section 120A read with section 120B In case a person aids or instigates the Honour Killing then he would be liable for abetment as defined under section 107 and punishable under section 109 and 117. Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act, 1985:- In many cases of honour killing, there may be a humiliation to the member of the SC/ST when the killing itself is as a result of the inter-caste marriage. The SC/ST act contains provisions like special courts for arrest and lower burden of proof for these offences. The Indian Majority Act, 1857:- The Indian Majority Act, Section-3, 1857 states that every person domiciled in India shall attain the age of majority on completion of 18 years and not before. Unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age. However, in the case of a minor for whose person or property, or both, a guardian has been appointed or declared by any court of justice before the age of 18 years, and in case of every minor the superintendence of whose property has been alleged by the Court of Wards, age of majority will be 21 years and not 18. In India for Hindus and Christians, the age of marriage is 21 and 18 years for boys and girls respectively Hence a person of a certain age can marry anyone of his choice. The Protection of Women from Domestic Violence Act, 2005:- Under the Domestic Violence Act, there is protection afforded for women who are victims of violence of any kind the perpetrators of which may include the own family members of the victims. Section 3 of the Act defines domestic violence to mean any of the following (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or otherwise injures or causes harm, whether physical or mental, to the aggrieved person. The provisions under the act are particularly stringent and this legislation is relevant as the victims of such instances are usually women. Codified provisions for prevention of Honour Killing:- In the year 2010, the National Commission of Women came out with draft guidelines for the prevention of honour killings which were titled as “The Prevention of Crimes In The Name Of ‘Honour’ & Tradition Bill, 2010. The salient provisions of the draft bill provided for the following features – Section-4 of the draft law stated the following any person or persons, whether he or they are members of the victims family or person or persons acting in concert with, or, at the behest of, a member of the family or a member of a body or group of the caste or clan or community or caste Panchayat ( by whatever name called), kills or kill, a woman or her partner or causes grievous hurt or any form of injury or to persecute her or them for exercising the rights stated in or participates or incites such an act for, shall be guilty of murder or any offence and shall be punishable with the punishment prescribed in the Indian Penal Code,1860. Section- 5 of the draft states that if any person or persons whether they are members of the victims family or persons who are acting in concert with them harass a woman or her partner for exercising their right to marry they shall be punished with imprisonment for a minimum term of one year but which may extend up to a maximum period of 10 years. The explanation defines the following instances to mean harassment – Declaring the couple, who have got married, a brother and sister, provided that they are not children from the same natural parent and such marriages are recognized by any law or custom for the time being in force Extraditing the couple or their family or relatives from the village or area they live in Asking the couple or anyone associated with them or harbouring them to pay a fine, Imposing social sanctions or social boycott on the couple or their family or anyone associated with them, Imposing economic sanctions or boycott on the couple or their family associated with them, Divesting the couple or their family including the family of the male partner of any land or property belonging to them, Repeatedly harassing the couple or either of them not to meet or associate with or live with each other, by physically visiting them or through any means of communication, Threatening the couple or either of them or their family or anyone associated with them of retributive action of any kind whatsoever, Causing harm or injury to the girl or the couple or anyone connected with them. Any other act or acts of harassment or intimidation, whether physical or mental or psychological, to stop the couple or either of them from meeting or being in the company of each other Section-8 of the bill provides for measures to prevent honour killing it makes the following provisions “When an Executive Magistrate receives information that any person or persons acting in concert with, or, at the behest of, a member of the family or a member of a body or group of the caste or clan or community or caste Panchayat ( by whatever name called), is likely to commit any wrongful and is of opinion that there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person or persons acting in concert with, or, at the behest of, a member of the family or a member of a body or group of the caste or clan or community or caste panchayat ( by whatever name called), to show cause why he/they should not be ordered to execute a bond with sureties for keeping peace and maintain good conduct for such period, not exceeding one year, as the Magistrate thinks fit. Moreover, it makes provisions for the removal of 30 days notice period that has to be given to the magistrate. Provisions under International Law:- Convention on Elimination of all Forms of Discrimination against Women (CEDAW):- The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states. India is a signatory to the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW 1979) and has also ratified the convention. The provisions of CEDAW can be used to argue that the tradition and practice of punishing individuals for ill-informed ideas of dishonouring the family, is essentially institutionalised discrimination against individuals and creates a legally binding obligation for India, as a State party to the convention, to take all measures to end all forms of the practice of honour killing and ensure that all discrimination against women in matters relating to marriage and family relations are eliminated, providing them with the equal right to enter into marriage and to freely choose a spouse and to enter into marriage with their free and full consent. Two of the relevant articles in the convention are as follows – Article-2 mandates that states parties ratifying the Convention declare intent to enshrine gender equality into their domestic legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. States ratifying the Convention must also establish tribunals and public institutions to guarantee women effective protection against discrimination, and take steps to eliminate all forms of discrimination practised against women by individuals, organizations, and enterprises. Article-16 prohibits "discrimination against women in all matters relating to marriage and family relations." In particular, it provides men and women with "the same right to enter into marriage, the same right freely to choose a spouse," "the same rights and responsibilities during marriage and at its dissolution," "the same rights and responsibilities as parents," "the same rights to decide freely and responsibly on the number and spacing of their children," "the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation" "the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration." Universal Declaration of Human Rights (UDHR):- The Declaration consists of 30 articles affirming an individual's rights which, although not legally binding in themselves, have been elaborated in subsequent international treaties, economic transfers, regional human rights instruments, national constitutions, and other laws. The Declaration was the first step in the process of formulating the International Bill of Human Rights, which was completed in 1966, and came into force in 1976, after a sufficient number of countries, had ratified them. Article 1 and 2 of the declaration state that “all human beings are born free and equal in dignity and rights,” and that “everyone is entitled to all the rights and freedoms set forth in” the declaration irrespective of “sex”. Therefore as enumerated in the declarations Articles 3 and 5, women are entitled to enjoy the “right to life, liberty and security of person” and also the “right to be free from torture or cruel, inhuman and degrading treatment”. Crimes of honour violate Article 3 and 5 when the purpose of the perpetrator is to inflict severe mental and physical pain on the women. International Covenant on Economic, Social and Cultural Rights (ICESCR):- The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 1976.[1] It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust Territories and individuals, including labour and the right to health, the right to education, and the right to an adequate standard of living. As of September 2018, the Covenant has 169 parties. Under Article 12 of the International Convention on Economic, Social and Cultural Rights (ICESCR 1976) State parties have to take all steps to ensure the “Right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” is ensured. Crimes of honour that involve sexual violence and mental violence or physical or mental torture obstruct the right of women to enjoy the highest attainable standard of health. India, as a State Party, is therefore legally obligated to ensure that individuals and victims of crimes of honour are able to avail this right. __________*********___________ [1] https://en.wikipedia.org/wiki/Honour_killing 27-10-2019,16.28 [2] 'HONOUR', Honour crimes and violence against women, preventing and punishing Honour Crimes Wafaa Abdelhadi S549677 Master Victimology and Criminal Justice Supervisor: Dr Felix Ndahinda Second reader: A.K. Bosma Msc. LLM 19 February 2016 (arno.uvt.nl/show.cgi?fid=139874) [3] 2006 (2) KLJ (SC) 735 [4](2011) 6 SCC 396