Author's name- Ms. NIMRAT KAUR.
The Author is a first year LLM student with specialization in Human Rights at National Law School of India University, Bangalore. risk of fetal death nine-fold. Anemia affects 24.7% adult men.
The Author is a first year LLM student with specialization in Human Rights at National Law School of India University, Bangalore. risk of fetal death nine-fold. Anemia affects 24.7% adult men.
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.
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.
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).
"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).
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
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.
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.
The role of khap panchayat, then and now, as explained above can be summed up in a pictorial manner for better understanding of the reader. It highlights the 'testers' against which the journey of khap panchayat from Tradition to Modernity is measured.
Testers
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Tradition
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Modernity
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Cost effectiveness
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Timely delivery of Justice
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Binding nature of decisions
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Increasing participation of women
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Respect for Individuality
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Thus the above analysis indicates that the much awaited local institutional justice has dwindled with the passage of time. The downward trend of Panchayati Raj as proposed by our founding fathers is an alarming signal to which law as well as society should promptly respond.
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