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Published : December 14, 2013 | Author : manbir_bhinder
Category : Human Rights laws | Total Views : 3739 | Rating :

Name:manbir kaur Designation: Assistant Professor, Institute of law, Kurushetra University, Kurukshetra Address: Aroop house, G.T. road, Shahabad markanda, Distt. Kurukshetra, Haryana

Khap Panchyats: Adjudicating Cultural Dishonour?

In India, the Panchayati Raj system was introduced with the aim of decentralization and democratization.  Yet there remain certain mysteries.  Khap Panchayats, the self proclaimed courts of caste lords in a village, enjoy full legitimacy and authority among the section of their caste as custodian of honour.  It is through them that most regressive views are sought to be implemented.  It is very distressing to note that in times when people chat via 3G technology, Indian society has regressed to the Dark ages.

What Ambedkar prophetically said in the year 1948 is the currently the state of affairs in India’s villages where institutions such as Khap/Caste panchayat not only exist and flourish but also being nurtured by political class of our country.  Villages in India forms the social unit if society which requires profound social change.  However, the Indian society in general and its countryside in particular, as it today never witnessed the unfolding of process of enlightenment.  The project of enlightenment in this country was a nonstarter from the day one.  Hence, as the consequence we will see continuance of these caste panchayats to follow a certain code which is unwritten law for them, through which they save and defend their honour and so called culture.

Khaps panchayats are active in various states of the country especially Haryana.  Khaps of these states are notorious for their outlandish edicts like declaring married couples siblings, ostracising families and such other atrocious acts.  The reason behind all these atrocious verdicts is to save the so called honour and culture of the society.  The Question here arises: who are Khap Panchayats? Who gave them right to kill in the name of honour...?  These Khaps are an affront to human rights along with social evils like dowry and child marriages and need to be dealt strongly as possible just the country fight naxals or ultras.[1] 

What Is Khap Panchayat?
Panchayat literally means assembly of five prudent and respected elders chosen and accepted by the village community.  Usually, some mighty and powerful persons, were coerced public consensus and without any election group together and declare themselves ‘the king of the caste’, thereby constituting the caste panchayats.

The “Khap” is an ancient concept which has written references found back from the Rig Vedic times.  There are basically social-political groups, which usually comprise of the upper caste and elderly men who are united by geography and caste.  The word Khap is probably derived from Latin word “corpus” which means an organization of individual.  Hence khap is a term for a social political grouping and used in geographical sense.

Khap was a system of social administration and organization in the republics of North-western states like Haryana, Uttar Pradesh and Rajasthan in India since ancient times.  The Khap consisted of a unit of 84 villages.

Rationale Behind Khap Activism:
The reason governing these khaps is that different societies have different customs or system of prohibitions, according to which a male or a female cannot have marriage with another male or female of other caste.  They follow the rule of endogamy[2]- it means the rule restricting marriage to members of the same tribe, village, caste, sub-caste or other social group.  Most people think that caste system is a static rigid feature of Hindu society and it cannot change.  This kind of thinking gives strength to the system of khap panchayats in our society.

Origin of Khap Panchayat:
The exact origin of khap panchayat is till date not known but is believed to start back in 600 AD.  In ancient times, during the time when man was living a nomadic life, villages are being formed at a rapid rate and man was heading towards civilization and better standards of living.  Throughout the last few millennium the society of the Indian sub continent, was organized in various forms, tribal village, and monarchical or republican the mode of governing was that of a council of five, which in time was called a Panchayat.  A number of villages group themselves into a Gohand.  A number of Gohands formed a ‘Khap’ and number of Khaps formed a ‘Sarv Khap’ embracing full province or state.  Hence the Sarv Khap Panchayat represented all khaps.  The individual khap would elect leaders who would send delegates, who would represent the Khaps at the Sarv Khap level.  It was political organization, composed of all the clans, communities and castes in the region.[3]
Basically these are the legacies of the tribal councils, formed by various tribes with purpose of facilitating resolution of intra-tribal disputes and inter-tribal intercourse.[4] Earlier these khaps are believed to have been multi-caste.  But presently they have been purely a Jat institution.  These khaps generally consist of powerful elements of the dominant caste.  They have great hold both at the local and provincial levels.[5]

Source of Strength Of Khap Panchayats:
According to Ranbir Singh[6] in his article, the following submissions may be made for the sources of strength of khaps:
1. The main secret strength of the khap panchayats is the persistence of strong kinship feelings among various clans.
2.  Prevalence of the concept of seem-simli i.e. the concept of bhaichara (brotherhood) among the clans living in neighbouring villages as well as among different gotras living in the same village.
3.  No one raises the voice against the verdict of khaps as they also are in favour of the verdict.
4.  The weakness of Panchayati Raj institutions is also responsible for the continued strength of the khaps.
5.  The conversion of khap panchayats into vote banks has also made them virtually unchallengeable.
6.  All the major political parties have been reluctant to raise their voices against them.
Hardcore Realities of Khaps:
The hard core reality of khap can be seen in many of the forms which are being imposed on the people.  These include:
1. Honour Killing:
Almost in all newspaper there is if not more than one news is of honour killing where family members of girl killed both boy and girl for marrying in the same sub-caste.  Now the question arises:  What is honour Killings?  There is no specific definition of honour killing.  However, these “honour killings” are murder committed by family members and the people belonging to the concerned caste/class of family members who are believed to have brought shame and dishonour on the family name.[7]  Another stark reality is that most of the honour killings have been reported from those areas where khap panchayats are more active.  These killing are given shape by the ruthless rules of khap system which takes away their lives with barbaric ferocity.  People living in a khap are not allowed to marry in same gotra from the same village.  The rationale behind this, they argue is that people belonging to same gotra are believed to be from the same clan or family lineage and thus brothers and sisters.  But there is great paradox involved here.  A recent study commissioned by NCW, which was conducted by NGO Shakti Vahini revealed that 72% of the 326 cases of honour crimes were in fact inter-caste marriages, while same gotra marriages were only 3 percent.[8]  In reality, honour killing is the outcome of clash between tradition and modernity and nothing else.
By creating the false impression that all marriages of choice between young couples are incestuous, what khaps are actually opposing is the right to choose marriage partner.  Among several instances of khap issuing fatwa’s, not a single one was an intra-gotra marriage, yet married couples were declared siblings, and their families made to suffer boycotts.  As couples are selectively targeted, it is clear the real motive is to control women’s sexuality to ensure that property remains within the patriarchal caste domain.

2. Forced Marriage:
A marriage performed by pressurizing one or both the parties and without their free will and full consent is considered to be a forced marriage.  Khaps often ordered marriage between two adults belonging to same village or gotra as illegal and forced female counterpart to marry other person who belongs to different gotra. It is considered to be a form of domestic violence.  But in spite of increasing number of such cases society, police and law is turning a blind eye to such incidents.  People falling prey to such forced marriages have to undergo both mental and physical torture.  
Recently one more dictum issued by the khap panchayat of Uttar Pradesh village which further malign already degraded image of khap panchayats.  According to their dictum, women who are below 40 years of age should make minimal use of mobiles and also banned love marriage.  This dictum created waves throughout the country and also voices are raised about what is legal validity of such dictum issued by so called khap panchayat.  These types of dictum create suspicion in our mind whether we are really living in 21st century.

Mahyem By The Khaps:
An increasing number of cases of honour killings have shown the truth of strong influence of khap panchyats on the Indian mindset.[9]  These notorious khap panchayats indulged in crimes by convincing people on how the act of their children brought disgrace to their families and what they have to do to protect the honour of their family.  There are many instances of honour killings which are said to be instigated by the decisions of khap panchayats.  Some of them are:

1. Mehrana Killing Of 1991 [10]:
Mehrana (named after village in UP) killing of 1991 is the first major incident attracted attention.  A Jat middle class girl of the village named Roshini eloped with Jaatav (erstwhile untouchable caste) boy named Vijendra.  One of the friends of the boy helped them.  The village people caught all three.  Village Khap panchayat ordered to hang them with tree and burn them.  In the morning the order of the so called panchayat was executed and all of the three were burnt alive to death in front of the whole village.

2. Manoj-Babli Murder Case [11]:
The Manoj-Babli murder case has set up precedent in the field of honour killing.  It was the case of honour killing of Indian newlywed Manoj-Babli in June 2007 and the successive court case which historically convicted accused for an honour killing.  The killing was ordered by a khap panchayat of the Karora village in Kaithal district, Haryana.

The khap panchayat’s ruling was based on the assumption that Manoj and Babli belonged to the Banwala gotra, a Jat community, and therefore considered to be siblings despite not being directly related and any union between would be invalid.  Nevertheless, the couple went ahead with their marriage, following which they were abducted and killed by Babli’s relatives.

In March 2010 a Karnal district court sentenced the five perpetrators to be executed, the first time an Indian court had done so in an honour killing case.  The Khap head who ordered but did not take part in the killings received a life sentence, and the driver involved in the abduction a seven year prison term.

3. Killing Of Ved Pal And Sonia [12]:
Another bizarre case involving honour killing was case of Ved Pal and Sonia. Ved Pal who is a medical practitioner used to run a clinic opposite Sonia’s house.  They fell in love with each other.  Both Ved Pal and Sonia knew that they belonged to different gotras and there was no inter-caste wedding between them as both belonged to the same caste, “Jat”.  So the couple did not think that because of their wedding, they had caused any dishonour to their families by marrying each other.

But who knew that the dangerous mistake Ved Pal actually made was getting married to a woman of his own choice, who was from an adjoining village.  What both of them did not know was the fact that according to the Jat tradition of medieval times, people who lived in  adjoining villages or villages which share boundary, were considered to be belonging to the same clan, irrespective of the fact to which gotra they belong.  Marriage between a boy and a girl from adjoining villages is thus against the khap rules, and prohibited by the panchayat, and thus considered to be a crime.  As a consequence khap panchayat ordered to kill Sonia and Ved Pal as they have brought dishonour to their respective castes.

Finally one day when Ved Pal went to his in-laws to bring back his wife, he was hanged by the mob of the village in spite of the fact that he was given police protection.  Thus even a court order and armed police protection could not help Ved Pal in getting her wife back home, or even save his own life from the wrath of the brutal supporters of khap rules.

4. The Case Of Honour Killing Of A Journalist, Jharkhand [13]:
In April 2010, in Jharkhand, even a woman journalist has become the victim of ruthless murder in the name of honour.  Nirupama, a 22 year journalist, who comes from a Brahmin family, fell in love with a boy from another caste and thus, was brutally murdered in the name of the honour.

5. Spreading Its Tentacles In South India: The Case Of Sivakumar And Megala, Tamil Nadu [14]:
The menace of honour killings under the pressure of these khaps has spread its tentacles all over India.  In Shivaganga, Tamil Nadu, a 20 year old girl Megala was told that she could not marry her lover, 24 year old Sivakumar as they were related and so her family got their daughter married somewhere else in June, 2010 from where she eloped with her lover.  The couple was finally traced by the family and Sivakumar was cruelly killed with sickles.

Khap Panchayat And Indian Judiciary::
Realizing the extent and frequencies of the malpractices and atrocities inflicted by Taliban-styled caste courts, the Indian judiciary by its interference, to some extent put brakes on their working.
1.  In Smt. Laxmi Kahhwaha vs. The State of Rajasthan[15], a Public Interest Litigation (PIL) was filed in the Rajasthan High Court, drawing the attention of the court to illegal regimes of caste panchayats on the weaker section of the society, especially on women.  The court observed that these panchayats had no jurisdiction whatsoever to pass social boycott, or impose any fine on anyone and to violate the basic rights of an individual. 

2. In State of UP vs. Krishna Master[16], our Apex court made an extraordinary move by awarding life sentence to the three accused of the honour killing who murdered six persons of a family.  The Bench further observed that wiping out almost entire family on the flimsy ground of saving the honour of the family would fall within rarest of the rare cases evolved by this court…….this was reiterated in Bhagwan Das vs. State (NCT of Delhi)[17], where the apex court opined that all persons who are planning to perpetrate honour killing should know that the gallows await them.

3. In Manoj And Babli Murder case, five of the seven convicts was sentenced to life imprisonment by the Punjab and Haryana High Court.

4.  In Sujit Kumar vs. State of UP[18], Allahabad High Court noted that in our secular and liberal country what extremely disturbing is that the police and other authorities do not seem to take steps to check these disgraceful and barbaric acts.

5.  In the renowned case of Armugam Servai vs. State of Tamil Nadu[19], the SC observed that Khap panchayat often decree or encourage honour killings or other atrocities in an institutionalized way on such boys and girls, who wish to get married or have been married, or interfere with the personal lives of people.  This is wholly illegal and has to be ruthlessly stamped out.  The court termed Khap panchayats as Kangaroo courts and declared them illegal.

What Law Says?
There is no specific law in India which deals with gruesome act of honour killings and any punishment regarding the same.  There are treated as murders under the provision of IPC as it is not a crime specified separately under the laws and no data about this crime has been collected by the National Crime Records Bureau.[20]  Apart from that, the most shameful situation emerges at that moment when the FIR’s were not being registered in such cases, and even the cases pursued, their conviction rate is very low.

To curtail this kind of killings, Central Government has made its view clear that it is coming out with a new legislation.  Under the proposed law, members of the khap panchayats or the victim(s) families, if their action results in the death of the person or persons who feel went against the tradition or the wishes of khap will be punishable with sentence of death or life imprisonment.  In such cases, the entire panchayats will be held responsible.
For this purpose, the draft bill intends to append a new clause to Section 300 of the IPC.  It also intends to amend Indian Evidence Act and the Special Marriage Act, which would eliminate the provision for the mandatory 30 day notice period for marriages, intended to be solemnized under the Act.  The new bill is also expected to introduce a definition of honour killing for treating it as special crime and ensuring clarity for the law enforcement agencies.
However, it is distressing to note that in spite of such encouraging developments, the evil has not been checked efficiently.  In reality, the system itself supports barbarism.  The law has failed tremendously in curbing such nasty practices.  Although, the judiciary has played an active role, yet there were instances in the past where court orders have been ignored and protested against.
Thus, the urgent call is to pass stern laws, enforce them rigorously and punish the offenders deterrently so that electric shock in the idea of Jean Hampton[21] ever flows in the nervous and circulatory systems of ‘Khap panchayats and of the deaf and dumb civil society member there over.
Traditionally, caste panchayats have played a powerful role.  As they are not elected bodies, their decisions are not enforceable by law but their terror will continue unless they are banned.  Hence, the only possible solution to the problem is to banish the khaps from India.  It is imperative to punish the responsible people harshly in order to prevent cultural and religious practices that are derogatory in nature and violate human rights and dignity.  Killing the crimes in the name of the honour can be calculated as cold blooded murders, and its ghastly practice amounts to grave violation of human rights. 
In light of the above discussion, following suggestions are submitted:
1.  First of all, there should be a uniform definition of honour killing so that there is no room left for ambiguity as to what constitutes crime.
2. Indian Parliament is required to enact a new legislation at the earliest for curbing the menace of unconstitutional khap panchayats.
3.  Any person convicted under such law should also be debarred from contesting any election for life time.
4.  Special fast track courts should be constituted for handling cases of honour killings.
5.  There should be amendment in the Evidence Act in order to shift the burden of proof on accused, thereby making him responsible to prove his innocence in the event of honour killing.
6.  Amendment in the IPC should be made to insert a new section for defining the crime of honour killing and prescribing punishment for the same.
Last but not the least, the Government of India should remember its obligations and commitment to protect its citizens from such violence under CEDWA[22].
In the end of this discussion, I only find one solution to eradicate this social evil i.e. combined effort should be made by various modern and formal institutions of our country like Panchayati Raj, Judiciary, Police and the larger state.  But above all, this deep rooted and thriving cactus’s destruction requires people to wake up.  They should stop following the irrational norms laid down by Panchas.  Education and awareness of the people are very necessary.
But in spite of various efforts made by our government and judiciary, the culture of honour killings continue unabated.  The reason is simple. Even the law enforcement agencies strike a conciliatory note as there is hardly any case reported or action against these perpetrators of injustice.  Moreover, police and political figures have their vested interests in its continuance.
So the answer of the above discussion comes with balancing the human values of liberty and equity without the uncivilized moral degradation of public based on neo-liberalism.  There is need for healthy norms along with some stringent legal measures that can come to power only through some new social reforms. Therefore, in addition to other effective way-outs, the government and social organizations would have to resort of changing the mindset of people.  As it is more than a law and order problem; it is a social evil!
[1] The Tribune, 28th March 2010
[2] Indian Society: structure and change
[3] The Sunday Statesman, 1 August 2010
[4] The Need to tame khap panchayats, Economic and Political weekly p 17, Vol XLV No 21
[5] Economic and political weekly, p 18, vol XLIV No. 52
[6] Feudal roots, Frontline, 28th August 2009
[7] http://www.marriage.about.com/honour killings
[8] The Hindu, Aug 6, 2010, p 11
[9] Talking tough: Khap Panchayats refuse to mend medieval ways, Deccan Herald
[10] A question of silence? The sexual Economics of modern India, edited by Janaki Nair, 1999, pp.328.
[11] wikipedia.com
[12] http://www.lawteacher.webarchive.com
[13] ibid
[14] ibid
[15] AIR 1999, Raj HC
[16] AIR 2010, SC
[17] AIR 2011, SC
[18] AIR 2011, All HC
[19] AIR 2011, SC
[20] The Hindu, Aug 6, 2010, p11
[21] Jean Hampton; Message from Punishment. (1980)
[22] United Nation Convention on the Elimination of all forms of Discrimination against Women

The  author can be reached at: manbir_bhinder@legalserviceindia.com

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