Authored By: M. Durga Devi
VelTech, School of Law
ABSTRACT :
In India, honour killings illustrate an ongoing conflict between deeply established social morals and constitutional morality, which are rooted in caste systems, patriarchal control, and locally-enforced codes of honour. Often these crimes are triggered when individuals exercise their right to choose their spouse irrespective of family requirements or customary practices or when honour-related violence has taken place and holds a family or community accountable for those decisions. In this article issue will present a constitutional approach to understanding honour based violence, as it relates to the individual’s personal Liberty in choosing a partner acting as inherent part belonging to the individual’s personal liberty, dignity and autonomy granted toward them As protected by Article 21 of the Constitution of India, when considered in conjunction with Articles 14 and 15 of said Constitution. Also discussed will be how the Supreme Court of India has clearly articulated case law that collective community approval cannot supersede constitutional rights. Additionally, this article will review how extra-legal community institutions, systemic gender discrimination, and poor enforcement prevent honour-related murder from being prosecuted even with very clear court decisions on the matter prohibiting such acts.
Keywords: Honour Killings, Constitutional Morality, Right to Choose, Article 21,Personal Liberty, Caste and Patriarchy, Rule of Law.
- Introduction
In India, honour killing represents a continuing and distressing conflict between the values of established social morality and those of Constitutionally-enumerated law. Caste-based hierarchies, a male dominated society, and an enforced system of honour codes in various communities have produced these acts of violence when an individual decides to select a mate against the wishes of their family members and custom. Honour killing is not merely the result of an individual’s feelings towards another person; these incidents of violence are also a means by which the community or family attempts to continue the exercise of their socially established control over the individual’s autonomy or the maintenance of a perceived reputation or the expression of their community’s journalistic spirit. From a constitutional perspective, honour killing is, in fact, a direct violation of the rights to equality, non-discrimination, dignity, life and individual freedom guaranteed by The fundamental rights secured by Articles 14, 15 and 21.[1] The Indian Supreme Court’s affirmations of personal liberties have always included one aspect of personal liberty The freedom to determine one’s marital partner. The Court held that in Lata Singh v State of Uttar Pradesh indicates both approval of inter-caste marriage as acceptable behaviour; and condemnation of the harassment of consenting adults engaged in inter-caste marriage. [2]The SC also made similar statements in Shakti Vahini v Union of India including that community councils or caste assemblies cannot interfere with an individual’s matrimonial choices, and they also issued preventive, remedial, and punitive guidelines for the community to take to protect individuals from honour-based violence.[3] Taken together, these precedents clearly articulate that the Constitution prohibits the supremacy of social or community consent over the individual’s constitutional rights. The argument made in this paper is that there is an institutional failure to put into practice the concept of constitutional morality; the divide created between how the Constitution defines law and policy, and how they are enforced, is a reflection of this failure. As long as social morality can operate stronger in practice than constitutional protections for individual rights, the right to choose remains vulnerable. Therefore, to protect this right is not just a question of prosecuting someone for committing a crime, but is also a measure by which the State can demonstrate its commitment to the primacy of the Constitution and its commitment to the rule of law.
- Does the Right to Marry Override Violence in the Name of “Honor”?
Marriage is a social and cultural event that has great importance in society. An issue is whether or not adults have the right to get married, regardless of their community’s expectations and the restrictions of their respective families’ honor codes, and if they can marry where they please without fear of violence against them by their community for marrying outside of their community’s expected honor codes. Many adult individuals would like to have the choice to marry a person belonging to another caste or community different culture according to the laws of their communities, and many will be met with violence, threats, and possibly even death from their families or communities. These two conflicting values of social obligation (which are based on traditional family customs and ancestral family history) and constitutional protections (which exist to guarantee all individuals have the right to equality, dignity, liberty, and equality). As per the Constitution of India, a citizen has the right to not be discriminated against (right under Article 14), to receive equal treatment according to law (right As guaranteed under Article 15 and the right to live their lives freely and with dignity not be unlawfully detained/assaulted (see Article 21). All these rights are guaranteed under the Constitution as a right to a dignified life and as the right to equality. In Lata Singh v. State of Uttar Pradesh, the Supreme Court affirmed “that a person who has attained majority is legally entitled to marry a partner of her choice as well as enter into a marriage with whichever person they want, and that the community has no right to interfere in this marriage and that any such act of community interference is unlawful and against the Constitution,” as previously determined In Shakti Vahini vs. Union of India. Therefore, there is no basis for claiming community honour as justification for committing acts of violence against a person who chooses to marry. Furthermore, any form of violence or coercion perpetrated against an individual for exercising their right to choose a spouse, will amount, in the most basic sense, to the use or threaten to use unlawful force or to cause bodily harm to a person under the Criminal Code as well as breaching an individual’s fundamental rights.
- To what extent is the state’s failure to effectively prevent or prosecute honour killings indicative of its inability or unwillingness to fulfil its positive obligations to uphold constitutional rights?
The Constitution gives people the right to choose who they want to live with as their partner, through its Articles 14, 15 and 21. However, the prevalence of honour-related violence has raised question about: whether the state’s system to protect people who are at risk from honour-related violence is sufficient and/or adequate, or whether the state has established an appropriate framework for enforcing constitutional morality. In Shakti Vahini vs. Union of India, “the SC identified a positive duty for the state to take all preventative, remedial and punitive measured against honour killings, as well as making it clear that there should be special cells established for this purpose, safe houses for threatened couples, immediate police protection for couples at risk and punish offenders as expeditiously as possible.”The directions provided by the Supreme Court are evidence that the state not only has a passive obligation to punish honour crimes once they occur but also has an active constitutional obligation to prevent any breaches of the fundamental right to life and liberty from occurring. Nonetheless, a gaps within implementation still persist. Local community social pressures discourage police from enforcing the laws in their own jurisdictions, delayed responses to complaints, lack of adequate witness protection, and no established statutory framework to operate from, all contribute to an inability to enforce the laws. Victims often seek to notify law enforcement of violence before it occurs (i.e., prior to the actual act occurring), but because there is inadequate enforcement for preventative measures, social morality can be enforced with greater actual power than constitutional protections. To address this issue, we must strengthen preventative frameworks and create administrative accountability, and reaffirm that the State holds an active duty to protect the freedom to choose from honourable violence.
4 : Legal Consequences for Community Intervention in Adult Consent Marriages
As the Khap Panchayats’ intervention in an consenting adult marriage can have significant consequences both constitutionally and criminally. The above forms of interference would constitute violations of Article 14, 19 and 21 of the Constitution of India which guarantee individuals the equality and liberty code embodied in Articles 14, 19 and 21,In Shakti Vahini v. Union of India, the Court held that collective action designed to prevent or punish marriages based upon mutual adult consent were not only unconstitutional, but also illegal, and required the state to take preventative measures (Shakti Vahini v. Union of India). Similarly, in Shafin Jahan v. Asokan K.M., the Court found that the right to select one’s spouse lies within the very core of Article 21 (Shafin Jahan v. Asokan K.M., 2018, 2022(2) Krystral Mega B.com 1). In addition to the constitutional consequences, communal interference would likely expose the violators of that interference to criminal liability such as unlawful assembly, criminal intimidation and possibly even murder for those abusive honour killings (Honour killing, 2019).As Khap Panchayats do not possess any constitutional or statutory authority, their decisions are legally invalid and would expose the violators of that decision to prosecution. The state has a good faith duty to protect married couples from harm or interference.
- Conclusion
According to the Constitution, personal liberty includes an individual’s right to enter into a marriage with a person of their choice so long as both parties are consenting adults. The Constitution provides additional protections to every person on the basis of equality and non-discrimination. The Supreme Court has developed a body of law that has consistently determined that community-based rules (such as those imposed by Khap Panchayats) do not have any legitimate authority and cannot override constitutional morality. The decisions of the Supreme Court As held in Shakti Vahini v. Union of India, Shafin Jahan v. Asokan K.M., and Lata Singh v. State of Uttar Pradesh have declared as honour-based interference as a crime, as well as that the State has a positive duty to stop violence and protect vulnerable couples. In addition, the rule of law mandates that any decisions made by extra-constitutional bodies will be strictly enforced and that there will be an absence of any accountability on the part of the State, thereby upholding individual autonomy over the collective.
Reference(S):
[1] INDIA CONST. arts. 14, 15, 21.
[2] Lata Singh v. State of Uttar Pradesh, (2006) 5 S.C.C. 475 (India).
[3] Shakti Vahini v. Union of India, (2018) 7 S.C.C. 192 (India).
