Culturally motivated acts: an interaction between culture and criminal law in indian scnario.

Ms. Shreem Bajpai
Author:

ABSTRACT

All around the world, judicial pronouncements can be found convicting criminals who were convicted of crimes that were motivated by cultures. Culture plays a very important role when an individual interacts with the criminal justice system. When a country is invaded by another country or is colonialized the original cultures are misplaced with new norms set by the new dominant culture. Some of the original cultures or subculture’s practices that were valid and widely practiced can be criminalized as they do not meet their standards or are in contravention with their norms and rules. The article focuses on understanding the reasons behind those culturally motivated crimes.

The article commences with a short introduction to the topic. Followed by an indulgence in acknowledging certain characteristics of “culture”: essentialization, acculturation, and enculturation.

Thirdly the article deals with the relationship that is shared between crime and culture. Fourthly, it discusses Culture Conflict Theory and Subcultural theories and their validity in Indian culture. the fifth section takes inference form the various case laws instituted in Indian courts conviction accused for culturally motivated crimes such as child marriage and family feuds. The sixth section discussed the effects of criminalization and decriminalization of some cultural practices; followed by a conclusion.

The article, in no way, claims that all cultural practices are not in consonance with the current criminal system. It also does not make any derogatory remarks on any religion. In no scenario the words “religion” and “culture” are used interchangeably.  It only takes into focus the cultural practices that have been criminalized by the current criminal system.

KEYWORDS: Essentialization; Acculturation; Enculturation; Criminalization; Culture Conflict Theory; Subcultural theories.

CULTURALLY MOTIVATED ACTS: AN INTERACTION BETWEEN CULTURE AND CRIMINAL LAW IN INDIAN SCNARIO.

1. INTRODUCTION

The positivists of the 19th century believed that criminals were born with inclinations towards crime[1]. They did not believe in “free will”, and that the criminal does not have a choice between committing or not committing a crime. The picture started to change with the introduction of Italian School and Chicago School, where the focus also shifted to society and culture. “Habitus affects criminal inclinations” shared the stage[2].

“Crime” and be loosely defined as an act against the popular belief of the culture. When cultures interact with each other a difference of opinion may occur. Invasion by a foreign country, colonialization, or migration is some of the ways how cultures can interact with each other. In this interaction the culture that forces its authority and roots itself is known as the dominant culture. The dominant culture forces its authority by criminalizing or decriminalizing acts that conform to its laws. Hence, there are acts that are criminalizes by the criminal system but on the sub-cultural level by the cultural norms they are justified.

There are numerous cases filed in the record room of a district court that deals in culturally motivated crimes. Crime and culture share a relationship. Sati pratha or child marriage are legally wrong but (in some parts) is culturally right.

2. ESSENTIALIZING, ACCULTURAZING, AND ENCULTURATING

At this juncture it is important to acknowledge some of the ways “culture” makes its presence felt. These can also be termed as “culture’s characteristics”.

Essentialization- It means that cultures do not want to be perceived as a separate entity. They over emphasize their jurisdictions and justify their stereotypes and prejudices to display them as internally homogeneous. It tries to eliminate the arguments brought forth by the individuals who do not share the certain traditions and practices[3]. The culture tries to tightly hold on to its jurisdictions and makes itself felt whenever someone does or says something contrary with the cultural believes.

Acculturation- Additions can also be made to “cultures”. One of the factors include interactions between different cultures and one culture may have an impact over their preservation and transformation on another culture. When people from different cultural groups interacts with each other the cultural patterns change; the authority that it exerts loosens giving space to new practices and ideologies.[4]

Enculturation- “Cultures” can be learnt and passed on. A child is taught how to behave in the society as a part of that culture. it is a certain defined process through which the individual is taught the accepted values and norms of the currently established culture for the individual to termed as an accepted member and can fulfil the role that has been assigned to him/her. The individual imbibes the culture and then passes on; through these members culture asserts its authority. It teaches their acceptable place in the society. The stronger the hold culture has on an individual; the individual will exercise its culture with that same intensity. The individual will bind himself into the predefined boundaries and behaviour that commands what is acceptable and not acceptable within the cultural jurisdictions.[5]

3. RELATIONSHIP BETWEEN CRIME AND CULTURE

In the previous section we have learnt about Essentialization, Acculturation and Enculturation. It will not be wrong in saying that crimes are at many times are influenced or related to culture[6]. when a foreign nation invades another nation or when one nation colonializes another nation, the dominant society (invading/ colonializing country) asserts its authority and tries to sculptor the invaded or colonialized country in their image. While this sculpturing the original cultures also assert its authority on its members. The result is that the practices of the original cultures that do not fall in line with the criminal system of the dominant culture are held as crimes. The impact of the dominant culture is so intense that the original cultures have to submit to them. In the Indian scenario, then India was colonialized, British Penal Laws were was introduced in justice delivery system. Many of the Indian customs were banned as a result of this, for example Sati Pratha, child marriage, polygamy, slavery, and many more. The original cultures asserted their authority by means of raging wars against the British. Today our legal system is a gift of the British colonialism. The British won the battels against them and had a unified authority over the Indian sub-continent. They successfully rooted themselves as the Dominant culture over all the original cultures of Indian origin. This interaction resulted in acculturation of British culture in the original Indian Culture. Hence, today in the place of Criminal justice system provisions of Indian Penal Code are practiced and not provisions from Shariya law or the Manu Smriti, even though they play major roles as sources of customs but if we take an example of an accused tried for murder, the court will automatically turn to IPC establishing his guilt. Considering an example for honour killing, it is wrongful by the provisions of IPC but enculturating culture will justify the killing on every grounds. It will even try to protect the accused members from the criminal justice system.

In a nutshell, cultures exhort its authority on its members and prevents any roundabouts from their values and practices, but when different cultures interact with each other new practices and values are introduced into the cultures. This can be done by the factors considered above. On introduction of such foreign elements the culture exhorts more force to keep things stagnant. But some of the individuals through which these foreign elements are introduced imbibe these elements and pass along. As a result, the dominant culture like a big rock falling on a smaller pond places and roots itself, and the sub-cultures like the expelled water of that pond is misplaced.

So, when an act is practices dew to the essentializing character of the sub-culture, it may be in contravention of dominant culture’s criminal code. Although the said practice has all the constituents of “custom” it can still be criminalized. Therefore, Sati Pratha was a custom practiced from time immemorial bur was discontinued and criminalised by the colonial penal laws. Record rooms of various courts in India are filled with cases instituted for cultural based crimes.

4. SOCIO CULTURAL THEORIES

For this section soul focus will be on Culture Conflict Theory and Subcultural theories. These theories tend to provide an explanation of the acts that are termed as “crimes” under the current penal system.

Culture Conflict theory was given by Swedish American sociologist Thorsten Sellin in 1900s. the theory advocates that “crime” is a result of struggle between unlike behavioural standards governing conducts of individuals belonging to different cultures. The theory asserts the culture is imbibed by the individuals of that culture. It teaches them its defined certain cultural norms which are the “way of life” for the members inhabiting that specific cultural group. Validity and invalidity of any practice or conduct conducted by the group is strictly based on the behavioural norms of the culture. the members are expected to abide by the pre-determined cultural norms at every juncture. Their daily routine has to be governed by these norms. An individual can be a part of various social groups and have to abide by all of their respective norms. For example, a person born in “jain dharma” supports Congress party and his family is governed by “Mitakshara laws”. He/she has is bound by the prescribed conduct of all the social groups he/she is a part of. When the behavioural conduct of one of the social groups contravenes with that of another group, by breaching one of these contravening norms, in relation to that specific culture, this person’s conduct is termed as “abnormal”. If the norm infringed is of the dominant culture’s criminal system, the infringement is termed as “crime”. The author further describes two kinds of conflicts: primary and secondary conflicts. Primary conflicts take place when behavioural norms of 2 distinct cultures clash, for example when customary practices of a group are conducted in the territorial jurisdiction of another group. Britisher’s attempt to colonialize India and Indian Kings and princes raging wars against them (in order to preserve their loyalty towards their culture and prevent any adulteration) is one such example. Secondary conflicts arise due to “social differentiation,” (evolution and fragmentation of one single culture into several ones). Secondary conflicts arise in generations born after from the point of adulteration/ mixture of cultures. These individuals are influenced by different cultural norms. For instance, a police constable not arresting the accused for honour killing when he is bound to do so[7].

Subcultural theories are born out of the Chicago School of Sociology. The main emphasis of the study was immigration and minorities communities. A subculture is defined as a “subdivision within the dominant culture that has its own norms, beliefs, and values”. These theories tend to explain “crime” as a collective phenomenon. It results while abiding to norms and values that are distinct from values and norms of the dominant society. The theories assert the individuals who do not fit in the mainstream society, come together and form their own set of norms, believes and symbols. Theories also exhort that the due to the frustration of not achieving success with the dominant society, they negate everything that the mainstream stands for. Consequently, they commit acts that are recognised as “crimes” by the dominant society[8] (this theory has been much criticised). Subcultural theories also support the argument that the subcultures adhere to different defined set of rules which are not similar or inspired by the mainstream cultures and makes its presence felt by commission of criminal acts[9].

5. “CULTURALLLY JUSTIFIED”.

This section focuses on the various examples that of culturally motivated crimes. The section draws attention to various instances that are found in the newspaper headlines. “Culture” plays the role of “justification” and not an “excuse”. In the view of members of the subcultures the specified act is justified. These justifications are provided in the name of essentializing the cultures.

India has witnessed a considerable rise in dowry deaths. Dowry has been given and taken in Indian marriages from time immemorial. It is not a religious practice but a cultural practice. Taking or giving dowry has been banned by the legislature in the country but murder of brides for not bringing dowry or not bringing enough dowry has been facts of numerous cases. The subcultural theories can explain that even though “dowry” is prohibited by the norms of dominant culture, it is still practiced and justified by subcultures[10].

Indian courts have also recorded a noticeable number of cases regarding honour killings. The social groups that follow and justify this crime are groups who has essentialized themselves and do not allow acculturation. Here enculturation is not an option for them. Here the Culture Conflict theory the subculture wins every time an honour killing goes unreported[11].

Killings in the name for family feuds are one such example. An eye for an eye, and life for a life. Such practices are degrading and infringes the various human rights that are vested with the victims. The revenge streek can go as long as generations. It can reach the stage of murders, rapes or kidnappings. The dominant culture has prohibited such behaviours but the cultural strings which are taught to the members are stronger. In order to prevent infringement of subcultural norms, the members prefer to infringe the norms set by the dominant culture. These are places where people face themselves with secondary issues of culture conflict theory[12].

Murders on the bases of superstitions are not discussed in the lime light of issues. But many cases have come forth regarding human sacrifices to the deity or murder in the name of witchcraft. The dominant culture banns all such practices but because of the strong hold of cultural ties, these are practiced in private circles[13].

Many of the Indian cultures believe that a girl is a burden on the family (marriage, dowry). It is not religion based it is culture based. The culture teaches us our gender assigned duties and responsibilities. It teaches that the girl has to fulfil her duties as a bride. Culturally speaking, sons are preferred over girls and this the reason for crimes of female foeticide and infanticide. These crimes are in every way inspired by cultures. The subcultural norms dictate the roles and responsibilities of members of the group[14].

Many of the crimes listed under the ambit of domestic violence are culturally inspired and motivated. If the subculture dictates that woman are supposed to perform the said set of duties and any variations from that (many a times but not on every occasion) taken negatively; which results in acts criminalised as domestic violence by the dominant culture[15].

NCRB data has shown a 4.5% rise in crimes against children. Culture plays an important factor in contributing to this data. Both the theories have one thing in common. Children in every society is taught how to behave and how to react towards a specific situation. The habitus where a child is born plays a very important role in their belief systems. A child raised in a culture justifying crimes will grow in the believe system and with time “culture’s hold” on the child increases and he/she becomes a resolute member of that group, justifying the crimes of that culture.

6. CRIMINALIZATION AND DECRIMINALIZATION

The criminality in such scenarios can depend on the degree with which it opposes the norms and values of the dominant culture. Criminalization of any act is based on cultural assumptions (superstitions). It is done to avoid harm and protect people from harmful character of cultures. Protection of public safety and health, gender equality and protection of minors are a few of the determining factors which determine criminalization of any act. Throughout history, there are examples where acts of a culture which were considered normal were later on criminalized by the dominant society. For example, throughout India there are various cultures that validated the customary practice of child marriage but The Prohibition of Child Marriage Act, 2006 prohibited child marriages in the Indian Territory. These practices are widely disrespected on grounds of International Human Rights Standards (the dominant culture) but are still practiced in many subcultures. The practices that fall under the general umbrella of “crime” such as gender violence, human sacrifices, forced child marriages, comes focused on bodily harms, etc. the object of the dominant society is to encourage the arguments against the harmful facets of culture. Many international conventions have been passed and enforced in the signatory countries. Their aims are to minimalize the negative character which is produced over the period of time which is detrimental to human life[16].

But criminalizing every cultural activity also leads to infringement of human rights vested in them. Therefore, some practices such polygamy under Muslim Law are allowed in order to protect their freedom of religion. It has to be made clear that culture is different from religion. The article is not focused crimes that are done in the name of religion. It focuses on crimes that are inspired by harmful cultural practices

7. CONCLUSION

It can be certainly said that culture plays a role in certain crimes. Some crimes are motivated by the cultural aspect that governs them. Cultures essentialize, acculturize and enculturize. Evidences can be traced throughout the history. Colonialization of the Indian sub-continent is one of the reasons for alteration in the Indian set of values, customs and norms. Crime and culture share a relationship. Many a times culturally motivated acts are determined by the dominant society as crimes. These acts do not fall in line with and are in contravention with the norms of the dominant culture and are therefore termed as “crimes”. Culture conflict theory and subcultural theories can be successfully placed in the Indian scenario. There are n number of cases where the court convicted the accused for crimes that were culturally motivated. These acts are criminal in nature because dominant society has decided so on the bases of protection of human life, gender equality, and protecting victims from the harmful facets of culture. criminalizing and decriminalizing any act is based on protection of human rights of people’s human rights decided by the national and international

standard.


[1] Cesare Lombroso, Criminal Man,381 (Duke University Press, 2006)

[2] Yonghui Yan, A Summary of Ferri's Social Defense Theory from the Perspective of Positivism Philosophy, Advances in Social Science, Education and Humanities Research 543, 548-554 (2019).

[3] Clara Rigoni, rime, Diversity, Culture, and Cultural Defense, Criminiligy And Criminal Justice (July 30, 2018, 9:04 a.m.), https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-409

[4] Clara Rigoni, rime, Diversity, Culture, and Cultural Defense, Criminiligy And Criminal Justice (July 30, 2018, 9:04 a.m.), https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-409

[5] Supra

[6] Supra

[7] Clara Rigoni, rime, Diversity, Culture, and Cultural Defense, Criminiligy And Criminal Justice (July 30, 2018, 9:04 a.m.), https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-409

[9] Clara Rigoni, rime, Diversity, Culture, and Cultural Defense, Criminiligy And Criminal Justice (July 30, 2018, 9:04 a.m.), https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-409

[10] Dhananjay Mahapatra, 35 years on, Supreme Court plugs gap that aided dowry death accused, The Times Of India, (May 29, 2021, 05:17 IST), https://timesofindia.indiatimes.com/india/35-years-on-supreme-court-plugs-gap-that-aided-dowry-death-accused/articleshow/83053652.cms

[11] Brinda Karat, For One Of India's Most Brazen “Honour Killings”, Justice Denied, NDTV (June 26, 2020 8:02 pm IST), https://www.ndtv.com/opinion/for-one-of-indias-most-brazen-honour-killings-justice-denied-2252889

[12] Amil Bhatnagar, Blood feud among Bulandshahr families: seven murders and counting, The Indian Express, (March 22, 2021 7:14:28 am), https://indianexpress.com/article/india/man-under-police-protection-shot-at-in-bulandshahr-son-succumbs-to-gunshot-injuries-7238312/

[13] TNN, Woman killed for ‘witchcraft’ in Bihar, The Times Of India, (Jan. 4, 2021, 07:06 IST), https://timesofindia.indiatimes.com/city/patna/woman-killed-for-witchcraft/articleshow/80085507.cms

[14] Prerna Mittra and Ishita Sengupta, Ayesha suicide: Despite one death every hour, the menace of dowry persists, The Indian Express, (March 5, 2021 6:21:42 pm), https://indianexpress.com/article/lifestyle/life-style/ayesha-suicide-despite-one-death-every-hour-the-menace-of-dowry-persists-7215490/

[15]Anupama Mili, Domestic violence hits a high, The New Indian Express, (17th April 2021 05:58 AM), https://www.newindianexpress.com/cities/kochi/2021/apr/17/domestic-violencehits-a-high-2290857.html

[16] Clara Rigoni, rime, Diversity, Culture, and Cultural Defense, Criminiligy And Criminal Justice (July 30, 2018, 9:04 a.m.), https://oxfordre.com/criminology/view/10.1093/acrefore/9780190264079.001.0001/acrefore-9780190264079-e-409