Khap Panchayat: a mixture of tradition and modernity.
Traditional background
Khap is a system of administration, restricted to the states of Haryana, Rajasthan and Utter Pradesh. It is a concept of the patriarchal society, which means a society in which the role of the father is pivotal and central. Brotherhood and a harmonious community life are its salient features.
Khap Panchayats owe their origin to Vedic period. They were meant to work for the welfare and security of the inhabitants of a place or region. Imparting justice wherever there are disputes between two people or communities is the prime responsibility of the Khap Panchayat.
Mughal emperor Akbar not only recognized the Khap Panchayats, but also gave them full freedom in matters of religion and internal administration. They were exempted from taxes. One of the main reasons for their freedom of functioning is to save themselves from the outside armed invasions. Owing to this reason, they formed in to clans. This act has inculcated a sense of togetherness and belongingness clubbed with pride.
Khap Panchayats frame and execute laws like banning of female feticide, banning of dowry system, abolition of Sati, restricting the huge expenditures on marriages for the welfare of the people under its jurisdiction.
The good aspect in Khap Panchayats is, they do not take more time to settle the disputes. People need not pay charges for settling the issues to the panchayats.
Modernity.
In the modern times, with a view to separate judiciary from the executive, Article 50 of the constitution has been incorporated. And Article 40 of the constitution empowered the Panchayats to form self – governments.
Summing up, a Panchayat is a body or a council of members with the responsibility of settling the internal disputes in accordance with the existing customs and traditions of the community.
What are Nyaya Panchayats?
It’s a Panchayat that that has judicial powers. Generally its jurisdiction will cover seven to ten villages. The members of the Panchayat are selected through voting system. The Nyaya Panchayat bill, passed in 2009 still pending in the Parliament. This bill laid out all the essential factors pertaining to the role, functions and powers of Nyaya Panchayats. The 114th Law commission felt strongly that Nyaya Panchayats play a vital role in the realm of administration.
Benefits of Nyaya Panchayats.
The most important benefit of Nyaya Panchayats is, they reduce the burden on the judiciary which is already overburdened. Akin to the functioning of Nyaya Panchayats, Khap Panchayats function but with a narrow jurisdiction. Khap Panchayats deal with resolution of civil disputes pertaining to marriage, property disputes to name a few.
Customs and traditions are a part of Khap Panchayat.
All customs and traditions need not be brushed away saying that they are irrelevant to the Modern times. Some customs are so strongly entwined with people’s lives that they are staying with the people by becoming an integral part of the lives of the people. If a custom is not against the interests of the public and this custom has been in the society since a long time, such customs became codified law. The added advantage of such practice is that the society accepts them readily. The same acceptance will not be there in case of law brought by Law. Khap Panchayats follow the age old customs in their administration in some regions of India. Of course they vary from region to region.
Khap Panchayats are of different categories.
There are three varieties of Khap Panchayats. They are Sarv Khap Panchayat, Khap Panchayat and Tappa Panchayat. Of all the three Sarv Khap is the largest one. It solves the disputes of Khaps who were living collectively since a long period within its allotted jurisdiction. It embraces all those Khaps within neighboring areas in a district. The major drawback or criticism faced by Sarv Khap is that the women representation in its administration is very low or nil. In this respect Khap Panchayats are being carried away by the age old superstition that women are inferior to men. In traditional Khap Panchayats women, untouchables and scheduled castes are looked down.
Priority to Freedom of speech.
It’s not all bad in a Khap Panchayat. Whenever there is a dispute between two parties, the Panchayat will meet. In this meet all the members should be present. Then the Panchayat will conduct the trial in the presence of the villagers. In most of the cases the Panchayat reaches a consensus which is taken in to consideration and implemented. This decision is binding on both the parties involved in the dispute. If one of the parties express discontentment over the decision of the Panchayat, the Khap Panchayat is empowered to reopen the dispute and review. While dealing with all the proceedings, the Khap Panchayat takes care to give weight to the public opinion. It’s the same provision that is important in a democratic system. Our constitution provided the “Freedom of expression” under the article 19 (1) (G). Another important factor that the Khap Panchayat takes in to consideration is the time of lodging FIR in the police station, but before the case is registered in the court.
This provision is very helpful to the poor people who cannot employ a lawyer. In a recent case Khap Panchayat intervened in a marital dispute and settled the case within the precincts of the Panchayat. Because the couple did not go directly to the court. Had it been the case registered in the court, Khap Panchayat will not interfere in the case. The court’s verdict is final and it is binding on both the parties.
There are occasions when the courts take the opinion of the Khap Panchayat as it is well informed about the disputing parties.
If it is a case of inter- caste marriages, the maximum punishment a Khap Panchayat can impose is reprimanding or banish them from the community. The popular belief prevailing amidst the people that the honor killings are forced by the Khap Panchayats are being denied by the Khap Panchayats. In majority of such cases, Khap Panchayats claim that they are not aware when the honor killings are taking place. The Panchayats advise the aggrieved to seek the police intervention or protection as the case may be.
It is felt that more than the parents, it is the relatives who feel that the couple brought shame to the community who married within the same Gotra. The fact is the Khap Panchayats are neither the authority nor they have the knowledge of law related aspects or punishments pertaining to Honor killings.
Another startling factor related to honor killings is involvement of some political parties who force the perpetrators of honor killings.
Courts also seek the help of Khap Panchayats.
Once there was unrest in one of the villages of Haryana. The Jat community was demanding reservations in educational institutions and government jobs. When the agitation became violent and uncontrollable police resorted to firing to get the grip over the situation. Unfortunately a Jat died. The Chief Minister Bhupinder Singh Hooda asked the Khap Panchayat to take up the case to resolve. Even the courts failed to resolve the matter. The Khap Panchayat resolved the case and succeeded in avoiding further loss of lives.
This is an example of Khap Panchayat’s ability to solve problems, where courts also fail. The reason is Khap Panchayats know the psyche of the local people. In addition to this Khap Panchayats by resolving such cases, they are able to save the precious time of the courts. Above all the local people have a faith on their Khap Panchayats that they would get hundred percent justices.
It’s due to the same faith of the local people on Khap Panchayats, many property related and marital disputes are resolved in an amicable way without never ending adjournments of the courts.
It’s obvious from the above that most of the media reports are mere exaggerations , distortions and one sided.
Why Khap Panchayats are subjected to heavy criticism of late?
The main reason is its inability to apply itself to quick changing Modern times. If you see some of the cases handled by Khap Panchayats, you can understand the reasons for its unpopularity.
While dealing with a case in Bagpat district of Uttar Pradesh, the verdict of Khap Panchayat created an uproar in the country. The verdict was, women below 40 years should not use cell phones. These women should not go to the market places or for shopping without an escort. This is a clear violation of 19 (1) (D) of the article of the Indian constitution, that guarantees fundamental right of freedom of movement throughout the length and breadth of the country. The Khap Panchayat has its own reason for supporting its verdict. The Khap Panchayat says the verdict will save the women from harassment from the bad elements.
I don’t see any reason for singling out Khap Panchayats for its outdated views on women. What about our knowledgeable leaders who blame the women and demand reduction of marriageable age of women to 16 years?
Another reason for Khap Panchayat’s unpopularity in the recent times is, it has thrown the rights of an individual in to a trash bin. It is not all; it has also ignored the issues related to women. Because of their inability to fall in line with change, their modus operandi made them outdated and obsolete.
They failed to propagate the importance of education. They could not uphold the views of the society which treated the woman as the incarnation of Shakti or power even in the ancient times. Lack of inadequate women representation at the decision making level is quite conspicuous.
This is the single most factor that infuriated the people of modern times.
A debatable contention of Khap Panchayat.
Khap Panchayat bans inter – gotra marriages. Gotra means, clan. In Hindu society, the term means descendants of a common male ancestor. Two persons who belong to same gotra are said to be brothers and sisters as the case may be.But the law has granted every citizen of the country who has attained the age of 18 years in case of a female and 21 years in case of a male, the right to marry without any conditions, that is they can act according to their free will.
Hindu marriage act of 1955 specifies clearly except ‘Sapinda marriages’ (belonging to same lineal ascendance) marriages of same Gotra are not prohibited. This created a conflict between custom and law.
We come across with many cases, where the parents of a girl prefer to marry the girl against her will. The reason for this forced marriage is that the parents want to stop the possibility of a ‘love marriage.’ In these circumstances, the girls revolt against the parents. This in turn leads to tension and unrest in the family. In some cases, the parents resort to physical torture in order to make her agree.
Referring such cases, Khap Panchayat feels that the refusal or dissent amounts to dishonor of the family. Such dissenters have no right to live. They should be killed. This view of Khap Panchayat is nothing but a ‘Glorification of murder.’ Thus paving the way to perpetrators of the crime go unpunished. According to law both the perpetrators and the abettors of the heinous crime of murder should be strictly punished.
A flaw in the judgment of Supreme Court.
In a case, where one girl (real name withheld) named Sujata was subjected to threatening by her community alleging Sujata that she dared to go for an inter- caste marriage. According to Hindu marriage act 1955, inter- caste marriages were not prohibited. The law encourages inter- caste marriages to act as an antidote for the social evil caste system. Those who act violating the Hindu marriage act are liable for severe punishment. People thought that the supreme court in its verdict would curtail the powers of Khap Panchayat and declare their judgment as unconstitutional. But the Supreme Court did not do as per the expectations of the people. Instead it said, parents of such children can abandon their children. But parents cannot do it, because marrying according to free will of the children is not a crime. The couples who married according to their free will are entitled to live as an integral part of the society. If the parents behave in a hostile way, the very fabric of Family will be torn. This situation will lead to an unhealthy society.
Now the picture is clear.
We have seen the traditional way of imparting justice to the commoners. We have also seen, how the traditional ways of Khap Panchayats are acting against the interests and mindset of the modernity. As a result a big gap is created between the tradition and modernity. Can there be a way to restore the tradition while applying it to modernity?
The gap can be filled.
We know the Khap leaders are uneducated senior citizens of the society. They do not have the sense of flexibility. Yielding to modernity is thought as a defeat and surrendering their age old traditions by the Khap leaders. Government, through education can educate them so that they enter the realm of modern era and modern law. This will help in a great deal in reducing the generation gap. Women participation and most importantly in reducing the burden on the judicial system.
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