Amit Singh
Human rights researcher
Buskerud and Vestfold University College, Norway
UNIVERSAL
HUMAN RIGHS IN A TROUBLED WATER OF PARTICULARITY: CASES OF HONOR KILLINGS IN
INDIA
A.L. Basham
(1967) in his epic ‘The Wonder That Was India’ proclaim, “ In no other early
civilization were slaves so few in number and in no other ancient law book are
their rights so well protected... To us the most striking feature of ancient
Indian civilization is its humanity”.
The
above passage escapes the contemporary reality of Indian society where women
are being slaughtered in the name of cultural tradition and family honor. There
is a rising tide of honor killing against Hindu women, and their (victim of
honor killing) justified murder in the name of culture by their
parents/relatives, superficially reflects the tension between traditional and
modern values. However, at deeper level, Cases of Honor killings, represents an
old tussle between Universality of human rights and particularity-in this case
particular Indian tradition of killing those who breaches Hindu marriage
tradition.
Against
this background, this article critically examines the role of Universal human
rights norm to protect the victims of particularity (in this case murdered
women). I will also examine the concept of cultural relativism (in relation to
assessing those values that claimed to support honor killing in Indian culture)
and universalism and their influence of gender based violence- especially in
the cases of Honor killing in North India. In addition, I will argue for an
approach where tension between Universality and Particularity/relativism can be
reconciled.
Background
The establishment of the United
Nations and enactment of universal human rights regime in 1945 has empowered an
Individual to challenge against the atrocities committed by its State. Thus, an
Individual is no longer considered solely prerogative of the State. In course
of the time, the Universalistic idea of human has spread all over the world.
Main components of these ideas were: all human being, by virtue of their common
humanity possess dignity; certain human rights are fundamental, interdependent,
and inalienable and cannot be overridden by cultural and religious tradition
(Donnelly 1989:55). United Nations Charter (1945) confirmed and affirmed the
universal respect, protection and promotion of human rights and fundamental
freedom without any distinctions of race, sex, language, or religion (Article
1(3) and 55).Consequently, International Covenant on Civil and Political Rights
(1966) and the International Covenant on Economic, Social and Cultural Rights
(1966) supported the claim of human rights on the basis of “inherent dignity of
the human person”.
On
the other hand, the universality of human rights is being challenged by
Cultural relativist and by those who see human rights with limited
applicability. For the purpose of this paper, next section will elaborate the
concept of universalism in relation to relativism.
Universalism
The
idea of Universalism holds the view that due to underlying human unity, which
entitles all individuals, regardless of their culture, holds certain basic
minimal rights, known as human rights. Traditionally, Universalist has based
their support for universal human rights on three major jurisprudential
theories-the natural law theory, the theory of rationalism, and the theory of
positivism. Later on theories on the human capabilities provided philosophical
grounding for universal human rights (Donnelly, 1989:6).
Conversely,
idea of universalism due to its conceptual confusion has been termed as
‘elliptical notion’ (Alston 1987, cited in Brems, 2001:1). However, Donnelly malleable approach, what he
calls normative universality, is closer to full universality where the formal conception
of universality went beyond the signing of the human rights
treaty by the states (2007:79).
Interestingly, insisting the
necessity to strengthen the multicultural aspect of human rights, Bream,
stresses, that universality concept must include cultural and ideological
diversity to enrich the universalism of human rights. Furthermore, she says
that “human rights in their current shape are not sufficiently
multicultural...to be universal human rights must incorporate non-western elements
(2001:1)”. In Brem’s opinion ‘existential roots’ of human rights can be found
across the world (2001:7).
Cultural
Relativism/particularity of human rights
Throughout this article ‘Relativism ‘and
particularism is used in connection with each other. Relativism is a specific
practice might be relative to a specific context whereas Particular is the case
of values (universal/particular values) that something is particular to a
specific context.
The Oxford definitions of “relative”
are: “Arising from” depending upon, or determined by, relation to something
else or to each other” and “constituted, or exiting, only by relation to
something else; not absolute or independent.”
For example, human rights are culturally relative to the extent that
they arise from, are determined by particular culture (Donnelly, 2007:281).
‘Cultural
relativism’ is a theory which asserts that there is no absolute truth, be it
ethical, moral, or cultural, and that there is no meaningful way to judge
different cultures, because all judgments are ethnocentric (Gellener cited in
Zechenter, 1997:323).
Underlying tension between
universalism and relativism
The universal foundation of human rights
are under strict scrutiny and has been challenged by the proponents of cultural
relativism especially those (mainly Asian view) who believe that universal
human rights can be modified to suit to the particular culture. To human rights
relativist to apply universal human rights norms are impossible to defends in
diverse world and are no more than a “Western concept with limited
applicability” (Pollis and Schwab 1979,
cited in Zechenter, 1997:322).
Human rights to be universal in real
sense, in terms of worldwide acceptance, and for its effective implementation
at national and local level, there have to be minimum consensus on certain
human rights norms.
Explaining
the conflict between universality and particularity, Xiaorong Li stress, a
value may be understood as culturally specific by people who think it is valid
only within certain cultures. He further emphasize, ‘No one imagines that human
rights will be fully protected in societies that are ravaged by violent
conflict...where people segregated by class, caste system, or cultural taboos
(2001:470).
However he
suggests, ‘to acknowledge that the prospects for effective implementation of
human rights differ according to circumstances is not to legitimize violations
under unfavorable conditions, nor is it to deny the universal applicability of
human rights (Ibid).
Subsequently,
An-naim seem concerned about the weakness of legitimacy of human rights standards and suggests 'it' must
be addressed in order to enhance the promotion
of human rights in that society (1990:317). However, An-naim, more or
less, does not deny the applicability of existing human rights instruments
(Ibid).
The
proponents of this view suppose (Cultural relativism) that the validity of
human rights can only be assessed in an intercultural conversation where
certain belief or assumptions are commonly shared and not open to scrutiny.
Supporting
this view one of the key drafter of UNESCO, Jacques Martin recalled: that so
long as people’s view in faith or philosophy differ, there are bound to be
conflicts regarding interpretation and justification of rights (cited in Lee, 2011:19).
Whereas,
Ignatieff (2001:68) believe that, human rights is only universal moral
vernacular that validates the claims of women and children against the
oppression they experience in patriarchal and tribal society; particularly
against- arranged marriages [he failed to differentiate with forced marriage],
purdah, civic disenfranchisement, genital mutilation, domestic slavery, and so
on- that ratified by the weight and authority of their cultures.
Nonetheless,
conciliatory approach has been taken by Universalist and relativist, while
dealing with major human rights abuses of world concern. In this connection, an
intercultural conversation is taking place where believer of different faith
are seem agreed to condemn issues of genocide, slavery, racism. In such a
conversation, as Xiorong Li says, 'people may revise or reinterpret their old
belief based on public reasoning. The plausibility of such a conversation
suggests a way of establishing universal validity; that is, by referring to
public reason in defense of a particular conception or value (1996:407).
However,
the successful international, national and local implementation of human rights
cannot be achieved without reconciliation between universalism and cultural
relativism. Nevertheless, unless conflict exits between two these views, as
Goodhart argues, “If human rights are not universal then their theoretical
justification is undermined, (cited in Donnelly 2008:125). By the same
token, Xiaorongli (1996) says, “if the
concept of human rights can survive the
scrutiny of public reason in such [Asia] a cross-cultural conversation, its
universal validity will be confirmed.
Lee are of
opinion to have cultural dialogue between religious fundamentalist and
liberalism (Lee, 2011:898) whereas, Yasuaki
(2000:78) to tackle the problem of cultural diversity, proposes an inter-civilization standards of
human rights and strongly supports the
reconceptualization of human rights.
Interestingly,
American Anthropological Association (1947:543) asserts, ‘since an individual
realizes his personality through his culture, hence respect for individual
difference entails a respect for cultural difference…and no consideration of
human rights can be adequate without taking into account the related problem of
human capacity thus declaration [Universal Declaration on Human Rights] must
embrace and recognize the validity of many ways of life’.
Discussion
in this section was limited to the debate between universalism and relativism.
The influence of above debate very much shape and guide the discussion on
gender based violence against women especially in the cases of Honor killing in
North India. Next section will place
this discussion in more concrete manner highlighting the cultural/values
justification of honor killing cases in India.
Section II- Honor
killings in India
What is Honor Killing?
For the purposes of this article,
I will be defining honor killings as those murders that occur when a person (or
persons) transgresses norms imposed by her/his community in the name of
preserving honor as culturally prescribed. These norms may be with regard to
sexual autonomy, marriage, religious conscience, caste, property, etc, all of
which construct honor.
Honor killings- typically involve
the murder of a young woman who has “violated” notions of family “honor” and
“purity.” Such “transgressions” may involve anything from eloping with a lover
who is not accepted by her family to rejecting an arranged marriage to simply
wearing revealing clothing in public (Ghosh, 2013). Family gain and lose honor
through money, power, and improper
behavior of women; emphasis on
family honor is central to the Indian social framework since the
family still constitute a very potent force in
the social structure (Vishwanath and
Palakonda, 2011:386).
The victims of most honor killings
in India tend to be women, who is the repository of family honor and the
greatest threat to this honor lies in the women’s body, conduct due to her
reproducing and procreating capacity; the whole clan, and community are the
co-sharer of this honor as blood ties of the family extend to them (Chowdhary
2007, cited in Vishwanath and Palakonda, 2011:386). By choosing her own
husband in defiance of her family’s wishes, a young woman in India is “seen as
polluting not just herself but also her domestic group (Mehta, cited in Ghosh,
2013)".
Cultural
understanding of Honor Killing
In classical Latin, the word
"honor" meaning-honor, honoris, is associated with the idea of
respect, prestige, esteem, and connected with the existence of public dignities
and offices (Baroja, 1996 cited in Dagon, 2014:367). Seen from this perspective
honor has gender neutral meaning and not compatible with violence or killing.
The concept of honor that inspires violence has a collective aspect, shaped and
constructed by a gender specific formula (Dagon, 2014:367). In this gender
specific conceptulization, men's honor and collective honor of the group is
dependent on the proper behavior of female relatives and therefore, on the
control of female sexuality which in some cases ultimately led to the honor
killing.
Cases
of Honor Killing
People Vigilance Committee on Human
Rights (PVCHR) has reported the honor killings of three women in the state of
Utter Pradesh (July 2011). In October 2012, a young woman in Haryana, was
murdered by her own family after marrying a man they disapproved of who
belonged to another caste (ibntimes.com, 2013). In May 2008, five men in a
Haryana village of Baila murdered a pregnant 21-year-old woman and her
boyfriend. According to reports, most of the village strongly approved of the
double murder. In this case, the couple were killed because they hailed from
the same village, which is viewed as “incestuous’ by older, conservative folk.
In state of West Bengal, a man decapitated his sister and even brought her head
(and the knife he used in the killing) to the local police station to
surrender. Mehtab Alam, a 29-year-old, murdered his sister, Nilofar Bibi, 22,
after finding out she was living with a former boyfriend. He beheaded her on a
public street, saying "she had sinned and had to be punished.
Exact number of Honor Killing is
difficult to decide because such killings are frequently disguised as
“accidents” or even ”suicides,” rendering it impossible to accurately gauge the
number of such incidents. In India, such murders typically occur in the
Northern regions of the country (People Vigilance Committee on Human Rights,
2011). However, 80 percent of honor killings in the state of Haryana occur over
women marrying without their family’s consent (Shakti Vahini, 2013). In 2000,
the United Nations (UN) estimated that there are around 5,000 honor killings
every year worldwide (Chesler, 3:2010). In India, 2012, there are 900 reported
honor killings in Haryana, Punjab and Uttar Pradesh, while additional 100-300
honor killings took place in the rest of the country (Chesler and Bloom,
45:2012).
Who
is responsible for Honor Killings?
Honor Killing in India often led by
village panchayat (caste-based village Council in North India).These village
panchayat, though not directly involved in the killings, are guilty of providing
sanctity to such crimes. Currently, honor killings in India are perpetrated
most notably by the khap panchayats, (Caste based village council) in states
like Haryana, Uttar Pradesh, Punjab, parts of Bihar, and Rajasthan and katta
panchayats in parts of Tamil Nadu.
Despite their legal and official
status, village panchayats in some parts of the country are heavily dominated
and coerced by these informal social systems like the khap panchayats
(Kachhwaha, 2011:298). Khap panchayats are said to adjudicate on matters
related to social transgressions, marriage, property rights, inheritance, and
caste issues (ibid: 298-99). The development of non-state parallel systems of
adjudication has, especially after Indian Independence, resulted in the
constructions of gender and sexuality, tradition and honor (Vishwanath and
Palakonda 2011, cited in Annavarapu, 2013:130). In many incidents of honor
killings, the local panchayat is believed to have sanctioned -- or even
explicitly ordered -- such killings (Ghosh, 2013 )".
The Times of India reported that the
Panchayat declared before the court: “The main culprits [behind] honor killing
are not the representatives of khaps but the relatives of couples, when they
cannot resist the social pressure of the locality. Such ‘love marriages’ being
socially, customarily and traditionally prohibited relationships against the
age-old custom and tradition of marriages, their relatives and friends cannot
withstand the hostile taunts of their companions and [the] public at large and
this aspect forces them to commit such heinous crime of killing the couple on
the pleas of saving the honor of their families in the eyes of the villagers.
Domestic
and International legal Safeguard
In India, the right to marry is a
component of “right to life” as enshrined by Article 21 of the Constitution of
India. It is not simply the “right to marry”, but it is the right to marry out
of choice. In Lata Singh vs State of Uttar Pradesh (2006, SC 2522), the Supreme
Court observed that, “This is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes”. The Honor crime
also violates 14, 15, 91(f) of the Constitution of India. Unfortunately, in
contemporary India honor crime remains undefined thus most of the culprit
easily get away with the crime (Kachawaha, 2011:300).
In relation to free will and choice,
Universal Declaration of Human Rights (hereafter UDHR), in its preamble asserts
the dignity and worth of human person and equal rights of women and men while
affirming the freedom from fear and want. Article 3 says that everyone has the
right to life, liberty and security while article 5 prohibits torture and
inhumane treatment. Article 8 guarantees effective remedial procedure in
national justice system for the violation of human rights. Article 12 prohibits
arbitrary interference with privacy, family, home or Crosspondance including
attack on honor and reputation. The act of honor killing violates all
aforementioned rights. The UDHR also espouses the right to protection of law
against such attacks by Article 30.
Apparent is the fact that the human
right to life is violated by honor killings. In next section I will examine the
role of traditional values and how does it justify killing people for the sake
of so called values/honor? In addition, I will highlight the inherent conflict
between Universalism and Paticularism.
Honor killings reflecting conflict
between Traditional vs. Modern and Universal vs. Particular-
The
very notion that universal human rights are applicable to all human beings
irrespective of any other consideration is important here. While the idea of
“marriage” is a universal one, the terms and conditions of its execution and
substance are culturally specific. A liberal view of marriage would consider it
to be a matter of individual choice and freedom, whereas some communities – as
in this case – consider it to be tied to ideas of lineage, honor and religion.
(Annavarapu, 2013:130).
The
“aspirational” idea behind the documentation of universal human rights is put
under severe duress owing to the recurrent and recalcitrant presence of honor
killings. In such cases the idea of “individualism” and choice” is challenged
by the prevalence of informal social systems which rely on ideas of “culture” –
however contentious that term may be. The very fact that honor crimes stand at
the confluence of “competing spheres of legal subjection simultaneously –
customary laws, family law, criminal law and international law – makes this a
very challenging case to study” (Baxi et al, 2006:1240).
Honor
killings often occur due to the fact that certain individuals have flouted the
society’s normative stance regarding matrimony (Baxi 2006; Kachhwaha 2011;
cited in Annavarupua, 2013:131). In India, marriages occur for a variety of
reasons ranging from basic notions of “carrying forward the bloodline” to
pecuniary motives like property acquisition to the more contemporary notions of
love and exercise of choice. In rural India, the notion of “proper” marriages is
intertwined with adhering to certain norms in society which when disregarded
cause disrepute to the family and kin of the “accused”.
As
is indicated by cases of honor killings in this paper, one of the most
prominent reasons to execute an honor killing is when persons do not adhere to
the traditional norms of society and marry out of choice vis à-vis out of
consent by the elders in the village. This is said to bring “dishonor” upon the
family of the person engaging in such activity. Punishments can be fines
(nominal or substantial), ritual expiation, public humiliation (ranging from
blackening of face to dipping victim’s nose in human urine), forcing her/him to
host a feast for the village, beating up, and/or banishment from the village
including the murder (Yadav, 2009:17 ).
The
friction between universalism and cultural relativism is manifest in the case
of honor killings and honor crimes by khap panchayats. In my opinion, it is not
just the act of the murder of “erring” individuals but it is the process behind
the construction of honor, where the concept of honor placed in a women's body,
and it is being protected by social custodian (in this case village council) by
killing/restricting those who breached the boundary of honor. Here, the liberal
notion of “individual agency” is in direct contrast with the notion of
collective social agency and stringent norms.
Arguing
that human rights are indeed natural rights and inherent in the fact that one
is born a human being, Jack Donnelly (1984, 2007) points to the universality of
certain basic human rights as being both a positive and a normative issue. In
addition, Elizabeth Zechenter while analyzing “cultural relativism” (1997) also
supports this claim of Donnelly’s that relativism and cultural particularism can
be abused by states in order to engage in unethical practices against people.
In the case of honor killings by khap panchayats, one can see that if adherence
to a particular cultural practice is imposed in the name of “tradition”, the
attack is not just on the individuals but on the institution of individual
choice based on a conscious agency protected by the tenets of a Rule of Law
which is assumed to be based on universal notions of justice and fairness
(Annavarapu, 2013:131).
However,
if we take the standpoint of relativism, it becomes contingent on the cultural
ethos and values of that particular community. This is in violation of human
rights as understood as something not dependent on an external source or not
being a privilege – an argument that Donnelly (1982:56) has made, while trying
to justify the origin of contemporary human rights as being an exclusively
western one.
There
is the need for a universal human right to guarantees of culturally relative
fundamental rights as enshrined in the constitution of each state, if we take
the state to be the political community that we are concerned with. Therefore,
the argument of cultural relativism in terms of honor killings would be deemed
invalid by the universal human right to have constitutional rights protected
(Annavarapu, 2013:131).
Baxi
(2006:1245) has observe that the rise in “honor killings” is a reaction against
the construction of a modern notion of justice and law in which the attempt is
to inscribe tradition in clear boundaries that can be attributed to the
authenticity of an “Indian culture”.
Conclusion
Unless
the international community is involved using the crutch of a universal human
right which is not mired in controversies surrounding its content, the
seriousness of honor killings will be under severe doubt which will make it
harder to prevent future incidents in this regard. It becomes hard to justify
the universality of a right that is particular in terms of substance. If the
human right is specific on how it defines “free choice”, the relativists can
raise questions pertaining to the origin of this idea of free choice since the
substance of the right is articulated and that substance is cultural. As Baxi correctly observed that the notion of
the Rule of Law in relation to the complexities inherent in a postcolonial
terrain such as India where the tension between the forces of “tradition” and
“modernity” is evident in informal systems such as khap panchayats, and where
state itself constitutive of the dominant social relations and therefore
limited in its capacity to mediate social conflict (2006:1245).
It is from such patriachal cultural
attitude (reinforced by caste, class inequalities and States inability to
protect the honor killing victims) defense 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 (People's Vigilance
Committee on Human Rights, 2013).
If the 'culture' defense 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 (Dhavan 2010).
However, I am totally agree with the statement of Department of Justice,
Canada, that says, while honor as a cultural justification for killing is in
keeping with the mindset of certain groups, this motive cannot be attributed to
entire populations...The existence of cultural norms and practices does not
reduce individual responsibility except in those rare occasions where there is
significant individual psychopathology.
author can be contacted at Amit.Singh@hbv.no
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