Legacies of common law: ‘crimes of honour’ in India and Pakistan

Abstract

Through a comparative analysis of crimes of ‘honour’ in India and Pakistan and an examination of appellate judgments from the two countries, we reflect upon how a rights-based discourse of modern nation-states forms a complex terrain where citizenship of the state and membership of communities are negotiated and contested through the unfolding of complex legal rituals in both sites. We identify two axes to explore the complex nature of the interaction between modernity and tradition. The first is that of governance of polities (state statutory governance bodies) and the second is the governance of communities (caste panchayats and jirgahs). We conclude that the diverse legacies of common law in India and Pakistan frame an anxious relationship with the categories of tradition and modernity, which inhabit spaces in between the governance of polities and the governance of communities, and constantly reconstitute the relationship between the local, national and the global.

Notes

We would like to thank Prof Upendra Baxi and Uma Chakravarti for providing a close as well as supportive scrutiny of our work. Any shortcomings are, of course, ours alone.

1 U Chakravarti, ‘From fathers to husbands: of love, death and marriage in north India’, in L Welchman & S Hossain (eds), ‘Honour’: Crimes, Paradigms and Violence against Women, London: Zed Books, 2005, pp 308 – 331.

2 The same is the case in Afghanistan, where experience suggests the Loya Jirgah was invoked to institutionalise a post-Taliban constitutional ordering.

3 See the cimel/interrights Project on ‘Strategies to Address Crimes of Honour’ at http://www.soas.ac.uk/honourcrimes/.

4 Publics can be defined in three distinct ways and spheres. First, ‘there must be as many publics as polities, but whenever one is addressed as the public, the others are assumed not to matter … [second], public also has a sense of totality, bounded by the event or by the shared physical space [and third there is] the kind of public that comes into being only in relation to texts and their circulation’. M Warner, ‘Publics and counterpublics’, Public Culture, 14 (1), 2002, pp 49 – 90.

5 ME John & J Nair (eds), A Question of Silence? The Sexual Economies of Modern India, New Delhi: Kali for Women, 1998, p 3822.

6 Z Pathak & R Sunder Rajan, ‘Shah Bano’, Signs: Journal of Women in Culture and Society, 14, 1989, pp 558 – 582.

7 The Prohibition (Enforcement of Hadd) Order 1979; Offences Against Property (Enforcement of Hudood) Ordinance 1979; Offences of Zina (Enforcement of Hadd) Ordinance 1979; Offences of Qazf (Enforcement of Hadd) Ordinance 1979; and Execution of Punishment of Whipping Ordinance 1979.

8 F Gardezi, ‘Nationalism and state formation: women's struggles and Islamization in Pakistan’, in N Hussain, S Mumtaz & R Saigol (eds), Engendering the Nation-State, Lahore: Simorgh Women's Resource and Publication Centre, 1997, p 92.

9 K Sangari & S Vaid, Recasting Women, Essays in Colonial History, New Delhi: Kali for Women, 1993; and J Stacey, Socialism and Patriarchy in Communist China, Princeton, NJ: Princeton University Press, 1983.

10 S Watson & R Pringle, ‘Fathers, brothers, and mates: the fraternal state in Australia’, in S Watson (ed) Playing the State, Australian Feminist Interventions, London: Verso, 1990; C McKinnon, Toward a Feminist Theory of the State, Cambridge, MA: Harvard University Press, 1989; C Smart, ‘The woman of legal discourse’, Social Legal Studies, 1 (1), 1991 pp 29 – 44; and SM Rai & G Lievesley, Women and the State: International Perspectives, London: Taylor and Francis, 1996.

11 U Chakravarti, ‘Rhetoric and substance of empowerment: women, development and the state’, unpublished paper, 1999; P Chatterjee, ‘The nationalist resolution of the women's question’, in K Sangari& S Vaid, Recasting Women: Essays in Colonial History, New Delhi: Kali for Women, 1993, pp 233 – 253; K Jayawardena, Feminism and Nationalism in the Third World, London: Zed Press, 1987.

12 Panchayats are councils historically consisting of five members, although that number is by no means sacrosanct. Gram (village) panchayats are local government bodies and caste panchayats are regulatory bodies of caste-, biradari- and gotra-based communities.

13 Jirgas are councils which, like panchayats, also assume a state (sarkari) form and a tribal and community regulatory form.

14 B Karat, Survival and Emancipation: Notes from Indian Women's Struggles, New Delhi: Three Essays Collective, 2005.

15 See A Takhtani, ‘A multi-faceted study of society and culture’, Times of India, 13 April 1997, p 3.

16 Abu-Lugodh, cited in EP Moore, ‘Law's patriarchy in India’, in M Lazarus-Black & SF Hirsch (eds), Contested States: Law, Hegemony and Resistance, New York: Routledge, 1994, p 92.

17 BS Cohn, ‘Anthropological notes on disputes and law in India’, American Anthropologist (special issue on ‘Ethnography of Law’, ed Laura Nader), 67 (6, Part 2), p 106, noted that, while the intersection of ‘lawyer's law’ and ‘local law-ways’ may shape the outcomes of cases heard in courts, equally forms of state law are mimicked while adjudicating disputes in non-state fora. MN Srinivas, ‘A caste dispute among washerman of Mysore’, Eastern Anthropologist, 7, 1954, pp 149 – 168 for example, describes how in a caste panchayat the plaint and rebuttal were written, written evidence was relied upon and the English word ‘damages’ appeared in the vernacular.

18 SM Rai, F Bari, N Mahtab & B Mohanty, ‘South Asia: gender quotas and the politics of empowerment: a comparative study’, in D Dahlerup (ed), New York: Routledge, 2006.

19 Chakravarti, ‘Rhetoric and substance of empowerment’.

20 RS Moog, ‘Conflict and compromise: the politics of Lok Adalats in Varanasi District’, Law and Society Review, 25 (3), p 550.

21 Lineage or patrilineal descent from the same ancestor, which prohibits inter-gotra marriage.

22 B Karat, ‘Price of honour: caste panchayats as instruments of terror’, Times of India, Editorial, 14 April 2004, at http://timesofindia.indiatimes.com/articlesshow/614604.cms.

23 TK Rajalakshmi, ‘Caste injustice’, Frontline, 22 (1), 23 April – 6 May 2005, at http://www.hinduonnet.com/fline/fl2209/stories/200506001005000.htm.

24 The Hindu, 20 October 2004.

25 Indeed, the Indian representative at the UN Social, Humanitarian and Cultural Committee and a bjp member of the Rajya Sabha, SS Ahluwalia, protested vigorously when Kofi Anan included India among the countries where violation of human rights was taking place under the garb of protection of cultural norms.

26 Chakravarti, ‘From fathers to husbands’.

27 P Chowdhry, ‘Enforcing cultural codes: gender and violence in northern India’, in John & Nair, A Question of Silence?, p 337.

28 See SE Merry, ‘Courts as performances: domestic violence hearings in a Hawai'i family court’, in Lazarus-Black & Hirsch, Contested States, pp 35 – 58.

29 The definition of who is a minor or major in the eyes of the law has become quite complex. An adult has been defined in section 1 of the Offence of Zina (Enforcement of Hudood) ordinance 1979 as ‘a person who has attained, being a male, the age of eighteen years or being a female, the age of sixteen years, or has attained puberty’ (emphasis added). This definition has an adverse impact on women, because a girl as young as 12 or 13 (or even younger) who has reached puberty may be considered an adult and punished under the zina laws or the accused may use the consent of such an ‘adult’ as grounds for seeking acquittal. Bashir v The State, Pakistan Legal Decisions, 1986 FSC 196 is a case in point.

30 Asifa Quraishi argues that under the Hudood Ordinance the language that frames Zina-bil-jabr does not draw on debates within Islamic law about Zina under duress either as ‘Hiraba’ (forcible assault upon the people, involving some sort of taking of property) or civil redress for a rape survivor in its law of ‘jirah’ (wounds). Rather the definition of the offence of rape (Zina-bil-jabr) retains the language of colonial law that was in effect after the independence of Pakistan in the pre-Hudood period. A Quraishi, ‘Her honor: an Islamic critique of the rape laws of Pakistan from a woman-sensitive perspective’, Michigan Journal of International Law, 18, 1997, p 287.

31 For a critique, see S Beulah, ‘The state and the minorities in Pakistan … but some are more equal than others’, in Hussain et al, Engendering the Nation-State, pp 260 – 266.

32 A Muslim woman cannot contract marriage with a non-muslim by law in Pakistan. See MA Mannan (ed), DF Mulla's Principles of Muhammadan Law, Lahore: Pakistan Legal Decisions Publishers, 1995. The principles of Islamic family law thus supersede the equality provisions of the Constitution of Pakistan.

33 The law has now been amended in so far as the procedure for a fir and arrest is concerned. Where a complaint is registered under the Zina Ordinance, a senior police officer has to make an inquiry to determine whether there exist, prima facie, any grounds for filing the case and, if so, to proceed further. Since this amendment is only very recent, it is too early to evaluate its impact.

34 In 2003 over 7000 women and children were in prison in the 75 jails throughout Pakistan, of which most were charged with the offence of zina. In 1982 there were a total of 70 female convicts in Pakistani prisons. Report of the National Commission on the Status of Women, Pakistan, 2003.

35 Indian laws do not prevent inter-caste or inter-community marriages of choice between men and women under the following laws. ‘Under Section 3 of the Indian Majority Act, 1975 … [t]here is no prohibition of inter-caste or inter-community marriage in the law. If a person who is a major wants to get married to a person of another caste or community the parents cannot legally stop him/her. That being so, the Administration must ensure that nobody harasses or ill-treats or kills such people for marrying outside his or her caste, community or class'. Sujit Kumar and others v State of UP and others, 2002 (45) ACC 79 at 81.

36 See P Chowdhry, ‘Private lives, state intervention: cases of runaway marriage in rural North India’, Modern Asian Studies, 38 (1), 2004, pp 55 – 84; and Chakravarti, ‘From fathers to husbands’.

37 If the girl is below 16 years she cannot consent to sex and, if she is below 18, she is considered a minor.

38 P Baxi, ‘The social and juridical framework of rape in India: case studies in Gujarat’, unpublished PhD thesis, Department of Sociology, Delhi School of Economics, University of Delhi, 2005.

39 Chakravarti, ‘From fathers to husbands’.

40 Mathura, the young tribal woman who was raped by policemen, was detained in the police station following a complaint by her brother for having eloped with her lover in Tukaram and Anr v State of Maharashtra, 1979 AIR 185 SC. See also Premchand v State of Haryana, AIR, 1989,p 937.

41 Nasser Hussain argues that the colonial history of the writ of habeas corpus must be seen as ‘a history of increasing and ultimately complete legal institutionalization’, which details ‘the disparate ways in which law posits legal subjects, and extends and consolidates state power’. Citing a case published in 1814, Hussain observes that ‘the court was even willing to use the writ to intervene in family disputes’. N Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law, Ann Arbor, MI: University of Michigan Press, 2003, pp 69 – 70, 85.

42 V Dhagamwar, Law, Power and Justice: The Protection of Personal Rights in the Indian Penal Code, Delhi: Sage Publications, 1992.

43 Hussain, The Jurisprudence of Emergency, p 85.

44 Indian judgements labour the point that courts act to allow the expression of women's autonomous desires freed from patriarchal constraints. This is performed by giving a woman time to ‘cool down’, either in the court or the shelter, in conversation with herself, her natal family or a ‘lady advocate’, during which she composes herself or is persuaded, emboldened, reassured and/or freed of familial pressures.

45 Chakravarti, ‘From fathers to husbands’. See Oroos Fatima alias Nisha and another v Senior Superintendent of Police, Aligarh and another, Criminal Law Journal, 1, 1993.

46 S Warraich, ‘“Honour killings” and the law in Pakistan’, in Welchman & Hossain, ‘Honour’, pp 78 – 110.

47 Pakistan Legal Decisions, 2002 Lah 444.

48 Ibid, pp 447 – 448.

49 Zafran Bibi was convicted of zina and sentenced to stoning to death. Her husband had been imprisoned for nine years in a murder case, hence the pregnancy was considered a ‘confession’ of adultery. She alleged rape but, because of contradictions in her statement, the accused was acquitted while she was found guilty. On appeal the Federal Shariat Court set aside the conviction.

50 Pakistan Legal Decisions, 2002 Federal Shariat Court 1 at p 12 bc.

51 Also see Zarina Bibi v The State, Pakistan Criminal Law Journal, 1997, p 313 Federal Shariat Court.

52 Pakistan Legal Decisions, 1999 Lah 494.

53 The Edhi Trust is a national welfare organisation established by Abdus Sattar Edhi in Karachi. It is now the largest welfare organisation in Pakistan, with over 300 centres across the country, providing medical aid, family planning and emergency assistance.

54 However, the illegality of the police is evoked alongside Article 35 of the Constitution, which reinscribes the woman in love within the parameters of reproduction and marriage.

55 Chakravarti, ‘From fathers to husbands’.

56 Letter written to the Union Minister for External Affairs (Government of India, New Delhi) on 16 October 2002 on behalf of aidwa by Brinda Karat.

57 S Fish, Is There a Text in This Class? The Authority of Interpretive Communities, Cambridge, MA: Harvard University Press, 1980.

58 Sujit Kumar and others v State of UP and others, 2002 (45) ACC 79 at 81.

59 Ibid, at 80.

60 Ibid.

61 B de Sousa Santos, Towards a New Common Sense: Law, Science and Politics in the Paradigmatic Transition, New York: Routledge, 1995.

62 Hussain, The Jurisprudence of Emergency, pp 71 – 72.