Social revolution and law; a social approach to analyzing their relationship
Hearing a Public Interest Litigation filed by NGO Shakti Vahini in 2010, to make honour killing a specific crime, the Surpreme Court said parents, society and even Kahps or Panchayaths have no right to interfere when two adults marry. Activist Madhu Kishwar, pointing out to the issue of Ankit Saxena who was allegedly stabbed to death by his lover’s family in Delhi , said honour killings was “ too soft a word”. “ They should be called hate crimes”, she added.
Although the court refused to discuss the specific issue, it has asked khap panchayats not to behave like the conscience keeper of society, pointing out that marriage between two adults was governed by the law.
In this article we attempt to analyze if laws should play a role of revolutionizing the evil customs and traditions or if they be should leave the corrective measures to the conscience of the people who are practicing them.
Working definitions
Before proceeding it is important to define customary law, honour killing and social revolution.
According to the United Nations, honour killings are “ an extreme symptom of discrimination against women, which -including other forms of domestic violence-is a plague that affects every country”. However, in the context of reality and the events that have occurred in the past, the definition has to be viewed suitable for all genders.
The term customary law is derived from International law. Customary law, as stated by World Intellectual Property Organization can be understood as a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by indigenous peoples and local communities.
Social Revolution is anything that changes the fundamental structure of a system such as of the customs that are prevalent in the society at a given point.
Codification of law and the role of traditions
There are majorly four kids of legal system in the world, namely 1) , common law, 2) the civil law, 3) the socialist legality and 4) the religious system of law. Indian system of law falls under the category the common law. Since the article analyzes the subject in the Indian context, discussion of the other legal systems is outside the scope of the paper. However, Indian law does contain elements of the other systems of law.
According to legal dictionaries, common law is based upon societal customs and are unwritten laws established on precedents established by the courts.“Common law influences the decision-making process in novel cases where the outcome cannot be determined based on existing statutes.”
Apart from the common law system that relies upon the current context and previous judgement, there are codified personal laws in respect of matters relating to family affairs such are marriage, divorce, succession etc.
Customs play a crucial role in the day-to-day lives in India. In India, a fine amount of importance is given to cultural and religious laws. Different personal laws for different religions exist that govern the respective religions. While religion, as mentioned, has found a place in law, elements of culture that do not find a direct correlation to religion are fairly missing from the picture.
This article does not explore religious laws or the elements of religion since it is outside the scope of the core discussion. Culture or cultural practices, which can be described as any combined effect of humanly constructed social elements that help people live together, is a critical subject since it is not very often what the majority practice but by a comparatively small group of people. Apart from religion a number of other factors such a language, territory and even sports unite people.
According to Article 13, the term ‘law’ includes ‘customs’ and ‘usages’ having the force of law. However, any culture practices that infringes any of the fundamental rights conferred by part III of the constitution may be illegitimate.
The question at hand is what happens when cultural practices that are ‘social evils’ or infringe any of the fundamental rights. The following sections, keeping in mind practices such as dowry and honour killing, will analyze to what extent the Constitution push for social revolution.
Curbing ‘evil’ practices through law
This section will try to answer to what extent laws can help reduce evil practices. Cases that infringe upon the fundamental rights and are considered ‘social evils’ will be used as references. At the juncture, it is important to know that while there is no one precise definition of what social evils are, the article adopts the definition that any practice that infringe upon the human rights and fundamental rights of any individual or a group of people.
Dowry and honour killing are two examples of social evils that are still prevalent in the society despite them being penalized time and again.
The Dowry Prohibition Act, 1961 prohibits the giving or taking of dowry. In case of honour killings or honour crimes there are no exclusive acts or laws making the act an offence. Till date, they are dealt under section that refer to murder, criminal conspiracy and homicide in generic.
The core discussion of this section that follows will deal with honour killing and if there is a need for exclusive law criminalizing the act. It is clear that despite laws that ban sati, child marriage and other social evils, these practices continue to exist.
Social practices are deeply connected with people’s identity and in most cases it is difficult to prove them as offenses by just adopting a legal act to curb them. No law or punishment can stop them from practicing such acts.
Very often we resort to complaining how the laws are not being implemented and executed to it best which is why social evils and crimes continue to exist. The perpetrators of the act display less fear for law and respect for judiciary since their acts are accepted by the immediate surrounding they are living in.
Apart from laws and legal awareness, mass awareness in the form of campaigns and education initiated by the government can play a major role in curbing social evils in the society. It is also of importance to understand the relatively less capacity of our government to legally act towards crimes and to resist corruption that would let the criminals free. The desirable step would be to direct efforts towards creating social awareness amongst people at the ground level.
Hence, it would be more appropriate to find a fine line between the existing laws and the sense of right and wrong as perceived by the people. The responsibility of social revolution would be better off if left out of codifications and pushed forward by different ministries in the form of campaigns.
