INTRODUCTION
The main function of a welfare state is to work for social upliftment and
deliver justice. One of the functions of the State under the Directive
Principles of State Policy is to separate the judiciary from the executive as
given under Article 50 of the Constitution. Article 40 gives power to the
panchayats to form self-governments. The 73rd Amendment of 1992 introduced
Panchayats in Part IX and gave them the constitutional power to organize
themselves into self-governments. In other terms, a panchayat was a council of
members or a body of religious people or caste members who exercised exclusive
jurisdiction over the rural areas that existed even before the British rule.
Their main function was to decide internal disputes in accordance with the
prevalent customs, usage or traditions in the community. The people did not
object when these customs were changed or modified for the purpose of internal
administration (Baxi, 1976). For example, under the UP Panchayat Act of 1920,
the principle function of the panchayat was to act as a petty court so that
revenue could be collected by imposing fines as punishment (Galanter, 1989).
Panchayats are mainly found at village level, gram level and district level.
In this paper,
the researcher throws light upon the evolution, powers, functions and
criticisms of Khap panchayats. Khap is a system of administration
peculiar to the Jat community of Haryana, Rajasthan and Uttar Pradesh. It is a
concept of the patriarchal society and is based on principles of Bhaichara
(brotherhood) and HukkaPaani (community living and eating together). Each
individual carries the name of his/her village and gotra. Two people belonging
to the same gotra or two people belonging to a different gotra but falling
under the jurisdiction of the same Khap panchayat cannot get married. Such a
marriage is considered incestuous. This is because members of the clan share
the same patrilineal descent. The existence and role of the Khap panchayats was
first recognised during the Mughal period in clearer terms. Emperor Akbar even
granted freedom to the Khaps in matters of religion and internal
administration. They were exempted from taxes and the Khaps were allowed to
perform their internal functions with full freedom (Pradhan, 1966). They were
formed because the sufferers of armed conflicts and wars settled together and
organised themselves into clans. It provided them a sense of belongingness and
identity.
Concept of Nyaya Panchayats
Nyaya Panchayats have the judicial power to deliver justice in villages falling
under their jurisdiction. They mainly administer civil jurisdiction and are
usually established for a group of seven- ten villages (Pradhan, 1966). The
members are selected through the system of voting and they have to follow
proper rules and regulations as prescribed under law. The Nyaya Panchayat Bill
was passed in 2009 is still pending before the Parliament which clearly lays
down the role, functions and powers of these panchayats. The 114th Law
Commission Report exclusively discussed Nyaya panchayats and their positive
role in India. They get greater support from the locals and lessen the burden
on the judiciary. Similar to a Nyaya panchayat, a Khap panchayat governs a
group of five or more villages and organise themselves into a council of
members elected by voting. Their main work involves resolving civil disputes
relating to marriage, property etc.
Role of
customs and its effect in Law
"Justice has emanated from nature.
Therefore, certain matters have passed into custom by reason of their utility.
Finally the fear of law, even religion, gives sanction to those rules which
have both emanated from nature and have been approved by custom" (Krishnan, 2000).
A custom is a
practice prevalent in an area for a significantly long period of time. For such
a custom to become a rule of law, it should be in practice continuously for a
long duration, it should not be against public policy and it has to be
reasonable. Such customary laws are more acceptable in the society than radical
changes brought by law. Thus, in short, for a custom to become a codified law,
it has to be established that it is ancient, reasonable, continuous and certain
(Arpanjot, 2010). Khap panchayats are institutions following age old customs in
some parts of the country over generations. However, their customs vary from
society to society. What is followed in North India is different from Tappa in
South India.
Categories of
Khap Panchayats
A Khap Panchayat can be broadly classified into four categories Sarv Khap
Panchayat, Khap Panchayat, Tappa Panchayat. Tappa Panchayat is mainly found in
parts of Tamil Nadu and the omnipresent village panchayat which is most
commonly found. The Sarv Khap is the largest panchayat which solves disputes of
Khaps within its jurisdiction. It is an amalgamation of many Khaps within
neighbouring areas in a district which have been living collectively since
ages. One major criticism of the Sarv Khap Panchayat is that the participation
of women at the administrative level is negligible. Women are not allowed to be
representatives even when crimes are committed against women. They are
considered inferior to men, next only to untouchables and scheduled castes in
traditional Khap panchayats (Sangwan, 2011).
Traditional Approach
The origin of Khap Panchayats can be traced back to the Vedic period.
Originally, they provided a secured living for people of the same clan and
worked for the social upliftment of the community. The panchayats were expected
to ensure a high level of justice, fair play and efficiency, in the absence of
which the panchayats could not command respect from the villagers. The leaders
of Khaps passed resolutions for banning female foeticide, preventing the evil
practice of dowry, abolition of sati, imposing a limit on the costs involved in
marriages and restricting the number of people invited in a marriage so that
the girls' family is not burdened with extra expenditure. Khap panchayats
remain a popular method of rendering justice at the doorstep of people because
they do not involve any money, are less time-consuming and peaceful
negotiations between parties is possible (Sangwan, 2011).
Whenever, there
is a dispute, the panchayat is asked to settle it. The attendance of all
council members is compulsory for Khap meetings. These members conduct the
trial in the presence of the villagers and the decision which is considered
best under the prevailing circumstances is rendered. This decision is binding
on both the parties. Incase there is an objection by any one of the party, the
Khap leaders can reopen the matter and decide accordingly. In most cases, the
panchayat reaches a consensus after consulting villagers who possess the
freedom to voice their opinions. This right of exercising the freedom of speech
and expression is deep rooted in our democratic system and also given under
Article 19(1) (g) of the Constitution (Senthilraja, 2010) Traditionally, women
played a great role in the panchayati system. They were appointed as leaders
and council members in villages.
Incase of a
dispute, the panchayat members intervene at a stage where a first information
report (hereinafter referred to as FIR) is filed in the police station but
before the matter gets listed in the court. This is particularly useful for poor
people who cannot appoint advocates or pay hefty court fees to continue
fighting the case in district courts. Recently, in a small village in Haryana;
the Khap panchayat succeeded in resolving a marital dispute involving an
educated couple. After mediation, the couple decided to reside together and the
matter did not get listed in the court to obtain a decree for divorce.
Similarly, there have been numerous instances where Khap panchayats have
succeeded in bringing peace between the disputing parties. If at all the matter
gets listed in the court, the Khap panchayat does not interfere with the order
of the court. The verdict of the court is binding upon the parties. Incase of a
conflict between the decision of Khap panchayat and the court, the order of the
court prevails. However, if, while giving the judgment, the Khap panchayat
intervenes, the judge takes into consideration their opinions before delivering
the final judgment. It is believed that Khap panchayat is better informed of
the internal tensions than the district court who is an outsider. Hence in
these matters, the district courts seek assistance and support from Khap
panchayats.
Incase of
inter-caste marriages, the maximum punishment Khap panchayats can impose is to
reprimand the couple, ostracise them from the community or stop their
hukka-paani. Majority of khap panchayat leaders deny infamous honour killings
that happen due to intolerance of inter-caste/inter-gotra marriages or refuse
to comment on such sensitive issues. In majority of the cases, the panchayat
does not even get to know when the relatives kill their children as these
incidents happen late at night. In such cases, the remedy available to the
couple is to seek police protection and there are separate rooms in the police
station where they can seek shelter until the threat ceases to exist.
Generally, the couples escape from their native villages and sever all social
ties. The justification given for these killings is that the relatives feel
that the children have brought shame to their families by marrying within the
same gotra. The Khap panchayat is neither a binding authority nor do they have
the knowledge of law to give verdicts on matters of honour killings. These
honour killings are punishable in the court of law and tried in accordance with
the provisions of law. Even the political parties work as a team with these
panchayats. In one of the instances, there was unrest in one of the villages in
the state of Haryana because the Jats were asking for reservations in
educational institutions and government jobs. Because of the unrest, police
opened fire and one of the members of the Jat community got killed. The Chief
Minister Mr Bhupinder Singh Hooda requested the Khap panchayat to resolve the
matter. Even the court refused to take up the matter and asked the Khap
panchayat to resolve it. The Khap panchayat resolved the matter without further
loss of life and resumed normalcy. In this manner the Khap panchayats play a
major role in resolving disputes where even the court fails or refuses to
interfere because of the unshakable faith in Khap panchayats. It is the belief
of the people that justice is done without any biases or prejudices. Thus khap
panchayats play a major role in protecting the rights of the villagers, in
solving their property related, marital disputes. It also plays a role in
bringing changes in the society by working towards eradication of social evils
and encouraging more and more women to participate and voice individual
opinions. The way media reports cases relating to khap panchayats, is a very
one sided exaggerated view. We cannot rely on those reports and ignore the
noble work these panchayats are engaged in doing.
Modern
Approach
The main criticism of Khap panchayat is that rights of an individual are not respected.
Rights of liberty, dignity, freedom to choose own life partner are jeopardised.
Women are abused and their issues are never addressed. Most of the Khap rules
are against law. Rule of men rather than rule of law prevails(emphasis
added). The rate of female foeticide and infanticide is highest in North India,
especially in Haryana, where the sex ratio is highly disproportionate.
According to the census, there are only 792 females for 1000 males. These Khap
panchayats have failed to take measures for social upliftment such as
propagating primary education, criminalizing killing of girl child- the reasons
which led to the formation of these panchayats in the ancient times. There is a
lack of adequate representation of women at the decision making level. One major
criticism of such a mechanism is agitation by the youth as it disregards their
aspiration
In one of the
instances, the Bagpat district of Uttar Pradesh, Khap panchayat had issued a
diktat that women will not be allowed to carry cell phones and they cannot
visit the market place unescorted if below 40 years of age (Ramachandran,
2012). This clearly is a violation of fundamental right of freedom of movement
throughout the territory of India as guaranteed under Article 19(1) (d) of the
Constitution of India. The justification given by Khap leaders is that diktat
protects women from harassment. However, strict action must be taken against
the harassers who should not be allowed to move freely and not the other way
round. Our so called leaders were in news for blaming women for the rapes
committed on them and demanded reducing the marriageable age of women to 16
years (The Economic Times, 2012). Such insensitivity and deplorable remarks on
womanhood by these leaders should be dealt with seriously.
Khap panchayat
bans inter-gotra marriages which is highly debatable. According to the law,
every person who has attained the age of 18 years incase of a female and 21
years in case of a male, has the right to marry out of their free will. Under
the Hindu Marriage Act, 1955; only 'sapinda marriages' are prohibited and if
they have a common lineal ascendant. Marrying within the same gotra/caste is
not prohibited under law. This causes a conflict between custom and law. In
most cases, the family members of the girl get her married against her will at
a young age fearing a love marriage at a later stage. A forced marriage is
performed by the relatives without the informed consent of the bride. This
causes a lot of physical and emotional pressure, and the young brides often experience
physical violence, rape, abduction, torture, enslavement, sexual abuse, dowry
deaths and murder. A senior khap panchayat member gave a statement in a press
conference, "In order to save the community, one has to kill the
dissenters. Parents of such children should kill them as they bring shame to
the community and have no right to live. Only then the honour of the community
can be restored" (Kumari, 2011). Unfortunately, this glorifies murder and
the perpetrators go unpunished. It is strongly recommended that not only should
the perpetrators be punished but abettors of such murders should be severely
punished.
In case of Lata
Singh v. State of U P. and Anr (2006) 5 SCC 475), it was stated that the
petitioner was a major and is free to choose her life partner. The Hindu
Marriage Act, 1955 clearly does not prohibit inter-caste marriages. Infact,
inter caste marriages are helping to abolish the caste system and they should
be encouraged. The offenders should be severely punished incase of violence or threat
to life of such couples. The court allowed the petition. In this case, the
Supreme Court had the opportunity of restricting the powers of Khap panchayats
and declaring them unconstitutional and ultra vires. However, the court failed
in doing the same. One of the major criticisms of this judgment is that the
Justice Katju declares that parents of such children can abandon them. Such
acts by parents are not justified because marrying out of choice is not a
crime. Such couples are free to be a part of the society. The hostile behavior
of family members causes emotional trauma and ultimately creates ill feelings
which leads to failure of the institution of family.
A common
practice among Khap Panchayats is to declare an inter-gotra marriage null and
void. In extreme cases, the husband and wife are forced to become brother and
sister in front of the entire village and the child born out of wed lock is
given to the family members or given away for adoption without the consent of
the parents. In cases of such cruelty, the enforcement authorities need to
intervene and prevent such practices. Unfortunately, the law has failed to take
cognizance because such matters are handled solely by Khap panchayat who are
prejudiced in their minds. The court refuses to interfere with matters related
to caste. Recently these panchayats were seeking to amend The Hindu Marriage
Act, 1955 wherein same gotra marriage will not be recognised. It will have a
negative impact on personal matters of other religions like Sikhs, Jains and
Buddhists (Senthilraja, 2010). Such unreasonable demands are ultra vires and
unconstitutional. The question is to what extent should the government adhere
to demands of Khap panchayats? How far their functioning is justified under the
umbrella of having strong political ties and protecting their distinct
identity.
CONCLUSION
Khap panchayats brings people of the same caste together who decide to reside
peacefully. They came into force to champion the cause of human rights but
somewhere that purpose got lost. Instead now Khap panchayats moral police
people and when an individual revolts; he is punished as per their whims and
fancies. These panchayats do not have the authority to enforce or declare the
law under the Constitution yet it is a common practice. In reality, they only
have the power to form self governments and uplift the rural areas and bring
them at par in matters of opportunities, jobs, education and economic growth
with the urban areas. The Khap panchayats have failed in discharging these
functions efficiently. There is a great disparity in the customs of Khap
panchayats and the law. This has resulted in a lot of criticisms among the
educated youth. Their right to choose one's life partner has to be respected.
The law needs to take strict action against honour killings. No caste,
community or society is bigger than the right to live with dignity.
Generally the
Khap leaders are uneducated senior citizens who lack flexibility in their
approach. Through education they can be made aware of the existing law and work
in accordance with it. This will help in bridging the gap between the older and
younger generation. Participation of women should be encouraged at the core
level and everyone should be given a fair hearing before deciding a matter. In
this manner, the Khap Panchayats can successfully maintain their identity, gain
popularity and contribute to social and economic upliftment of its people. Not
only this, but they can be an immense help to the Government and bring in
social reforms at the village level.
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