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print versionIN THE late 19th century, District Judge J. H. Nelsen warned Madras Chief Justice Innes that the dharmasastra law was vastly different from the ‘real’ law of the mofussil. In 1948, Ambedkar warned the Constituent Assembly of India against the supposed innocence of villages and panchayats.
Politically, we have come to revere Panchayats of all kinds.
Socially, panchayat justice can be perverse, casteist, cruel, vindictive and murderous. We are still grappling with the real law of mofussil.
The collective murder of Babli and Manoj by the panchayat village near Kathal affirms the brutality of the panchayat.
Babli and Manoj ( aged 19 and 21) eloped. When they caught a bus, a Scorpio laden with her brother and cousins ( Suresh, Gurdev and Satish) and uncles ( Rajender and Baru Ram) and a driver chased and stopped the bus and forced them out. They were murdered — Babli by poison administered by her brothers and Manoj by strangling.
The bodies were found in a canal and unceremoniously cremated. Their offence: the marriage was within the gotra. The murder was ordered by Ganga Raj the Panchayat’s leader who also ordered a Rs 25,000 fine on those who kept in touch with Manoj’s family. Manoj’s sister and his courageous mother Chandrapati were both harassed.
Law
The District Sessions Judge, Vani Gopal Sharma, imposed the death penalty on the killers, life imprisonment for Ganga Raj and 7 years for the driver. Until caught, the accused were heroes in their caste’s cause. These occurrences are not new. I have over 10 volumes of reported items in my papers. The All India Democratic Women Conference’s (AIDWA) meeting on 11 January 2009, reported ‘honour’ killings and crimes in Punjab and Haryana about 10 per cent of India’s total), UP, Rajasthan, Bihar and elsewhere.
Home Minister Chidambaram may well have responded to Brinda Karat’s question in the Rajya Sabha on 28 July 2009, that his government does not recognise the Khap panchayats or their authority to punish. At least, this is a better answer than BJP’s S. S. Ahluwalia officially telling the UN that allegations of honour killings were derived from “( s) elective reproduction of unsubstantiated reports … based on hearsay†. Truth is so easily mortgaged to politics.
Like many countries, India has two legal systems. The ’real’ legal system of ’social law’ and the ’state legal’ system which overlaps ’social law’. ’State law’ works with authority in a number of commercial, transactional and other areas.
But in many social areas, it is the ’social law’ that prevails. ’State law’ has kept its reformist distance as a dream in so many matters including child marriage, widows — even sati . It is the belief of panchayats and other custodians of “social law†that their law is supreme and supremely includes threats, mayhem, ostracism, beatings, humiliation, the naked parading of mothers and girls, drinking urine and eating excreta, kidnapping, rape (what kind of honour is there in rape?) and cold blooded murder.
This is a mild review of an unending gruesome catalogue.
“Honour†killing and ‘suicides’ ( which should be called dishonourable murders) are a compendium term associated with Pakistan, Jordan, Palestine and the like.
It is insufficient in its description to many Indian situations which are about the maintenance of power, authority and status to make the vulnerable suffer the authority of the powerful. The Punjab High Court said on 16 March 2010 that it will not tolerate parallel judicial systems.
But it exists, not just in Punjab and Haryana but throughout India. It crosses the religious divide. Throwing stones at Muslim countries does not resolve India’s problems.
How does the ‘State system’ accommodate the Khap system or its equivalent? This is a problem that exists throughout the world. The first approach is that of indifference. The police refuse to impose ‘state law’ on the law of the panchayat. If the ‘state’ law moves, it could result in death sentences of the kind we have witnessed in the Babli- Manoj case.
This is rare. Second, various countries, such as Pakistan passed laws against ‘honour’ killings. But consider the Pakistan Supreme Court’s decision in Kamal v. State ( 1977) where it lessened the capital sentence because such killings were supposedly caused by grave provocation (the provocation defence).
The bench included Justice Dorab Patel. In 1989, the Shariat Appellate Bench called for an ‘Islamised’ change in the law, leading to the Qisas and Diyat Ordinances after which the provocation defence was not available per se.
Abroad
But offences could be compounded, and various other ‘Islamised’ options were opened up. From 1995, the provocation defence resurfaced in alleged honour killings. The tide of honour killings was unabated. In 2004, further changes were made obviating defences where the crime was in “the name or the pretext of honour†. Muhammad Ameer’s case (2006) suggests that Pakistan courts may continue the “patronage of honour killings†. Honour killings exist in some abundance in Eastern Turkey. In Jordan, data from 1997 to 2009 shows that women (especially teenagers) are subject to honour deaths and buried in unmarked graves.
Such honour killings have also been reported in Lebanon, Egypt and even amongst migrants in England. In 2000, the UN’s General Assembly passed GA55/ 111 calling governments to intervene.
As many as 26 States including Pakistan abstained. In July 2002 GA55/ 66 presented a report to eliminate honour killings. Asma Jahangir, rapporteur on extrajudicial summary or arbitrary executions since 1998, has filed separate reports on how honour killings attract impunity throughout the world. Concurrently, Radhika Coomaraswamy, UN Rapporteur on violence against women, also reported on honour killings from 1996 onwards.
Such killings also fall under the remit of the UN Committees on Human Rights (HRC) and women (CEDAW Committee).
The former has made it clear in General Caveat 78 on article 3 of the ICCPR ( Convention on Civil and Political Rights) that honour killings seriously undermine human rights.
’Culture’
One important defence of honour killings is the so called “culture†defence.
Culture has always been an excuse to limit women’s lives and prospects. It acquires even more sinister proportions when it is argued that honour killings find their defence, justification and roots in culture. It is from such “culture†defences that the South- East Asian theory of human rights has arisen whereby the culture of human rights has to yield to the so called demands of a so- called traditional culture. If the ‘culture’ defence is totally accepted as in the case of Khap Panchayats, the human rights enterprise would die. Culture and the culture of human rights have to be reconciled.
There is a plimsoll line below which no culture can be permitted to go.
For our present purpose, I do not want to enter into the culture- human rights debate. I will assume that there is, and should be, universal acceptance that wanton killings of the vulnerable with intent are grievous murders. There is much richness to be drawn from multiculturalism.
This is not one of them. I do not subscribe to the death penalty. But such crimes cannot go unchecked, unchallenged and unpunished.
Indians often malign honour killings in Muslim countries. Caste driven panchayats are no better. To say that all this is about honour is a lie. It is about revenge and murder. The sooner we accept that, the better.
The writer is a Supreme Court lawyer
