Cultural Defence in Criminal Law: Instances and Issues

Abstract

Every society has its distinct culture and its orientation. Law cannot remain aloof from the culture. The culture is in fact embedded in the law of land. Culture makes law and law also makes culture. Culture and law are interdependent. The legal proceedings, particularly criminal proceedings, do not accept cultural practice and tradition as a defence. At times, cultural practices and traditions come in conflict with each other. Protection of cultural rights on the one hand and the prevention of harmful consequences arising out of conduct have to be nicely dovetailed. In this paper an attempt has been made to analyse those circumstances where cultural tradition may be recognized as a defence in criminal or other legal proceedings on the basis of degree of harm likely to be caused by the conduct and also the circumstances where such defence cannot be extended. Where the culture and tradition violate the conscience, it may be considered in mitigating the sentence.