This article is written by Yash Sharma, a law student at Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article deals with the institution of khap panchayat existing in Indian society and its activities. This article also discusses cases in which khap panchayat did some diabolic acts and possible solutions to it.

Introduction

In the Republic of India, the state functions in the form of democracy which gets its sanctity from the Constitution of India itself. This indigenous form of governance has faced many challenges ever since its inception. The democratic government system in India is working at multiple levels: Central, State and Local level. In India, at the village level, the existence of Khap Panchayat has been significant since history. Khap panchayat in India, when the panchayat system is already in place, it enjoys a special place as self-proclaimed courts of cast lords. They get support from caste or gotra based social structure and enjoy full authority as ‘custodians of honour’.

This article discusses the Khap Panchayat and its operations. The judicial activism of Khap while the State Judicial and redressal mechanisms are already in place, makes it even more important to take account of their actions. Khap panchayat or Caste Panchayat which has been a credible body in the past, responsible for the security of the village with a social outlook, is now politicized.

Origin of khap panchayats

Generally, Khap panchayat exists in the form of union of villages, their pre-dominance could be largely traced from North India, but the traces of the origin could be found throughout the country. No exact period of origin of khap panchayat could be traced back from the 14th Century when small villages used to make unions for the security of the villages. There is a common notion among the historians that the concept of khap panchayat evolved only after settled village life became possible. In each village, there was a caste system and each caste in majority and ruling set a set of rules and norms for that village to follow. Any violation of those rules or norms were punished by that khap panchayat. In that way, the origin of a khap panchayat as a quasi-judicial body could be traced. But with the change in time the nature of the khap changed to a more politically cloaked way.

A khap is a collective unit of a number of villages that came together for the purpose of social control in the form of a political council. The khap is generally headed by the dominant caste among the villages. Also, the same caste or clan had control over the most resources such as agricultural land available to the villages. If no one clan dominant in a village could form a khap, other clans from other villages would come together to form a khap for collective efficient defence and control over the people.

Notions and rules of the khap

As already discussed, the khap panchayat governs the khap gotra (clans) from several villages. The main principle on which the khap or villages under khap panchayat works is that all born in the same gotra are brothers and sisters. Love marriage is prohibited by the khap and is considered as a taboo. Those living in a village are not allowed to marry in the same gotra or any other gotra in the same village. Those defying the rules were often sentenced to death by the khap panchayat in the past.

The khap panchayat’s tool of punishment is social boycotts and fines in a moderate situation. In extreme cases, there have been incidents in which khap panchayat ordered death sentence and even forced suicide. All these measures are taken on the ground of honour and brotherhood. All this is possible because the local government is not strong enough and is dependent upon these villages and khaps for votes. Ever since independence, no government has actively tried to control these institutions.

What wrongs have continuously been done by the khap panchayats

Khap panchayat is overtaking the role of the judiciary for a long time. It is done because they believe that in court and police investigation the families and individuals are exploited. In khap panchayat, they believe that because everyone knows everyone and are aware of the situation they can decide the matters themselves informally. This way they can avoid the exploitation of the judicial process. Also, the evidence validity is easier as they could be cross-checked by the neighbouring people. 

Khap panchayats in the state of Haryana and other close regions have continuously targeted women and in several instances threatened, abused and killed girls via verdicts. In these cases, the family of the victims generally doesn’t have any problem with feeding pesticide pills and then disposing of their bodies by burning it down without any police case. This is done because the entire burden of preserving the honour of the khap or village is put on girls. It is seen that for boys the rules are rather flexible and they are often exempted from grave punishments but for girls, there is rarely any exemption. If a couple elopes the family face abuse and is often levied with fines in lakhs and in some cases the other women of the family face violence and abuse.

Some verdicts of khap panchayats

Khap Panchayats have given verdicts on several cases till date. These cases range from a case of any marriage that is done by violating the customs of the village to a case of some dispute or dowry or social reform that goes against the norms of the khap. There are cases in which panchayats came to a decision while being consistent with the traditional laws and inconsistent with modern state laws. Some famous cases of khap panchayats’ brutality are:

Case of Chaubisi khap

This is a case of June 1983 wherein, to counter the social issue of excessive expenditure in weddings, a sarv khap panchayat was called by the Pradhan of Chaubisi khap. The reason for the meet was to lighten the burden of wedding expenditure. Representatives of all the khap panchayat from the area who formed sarv khap participated and came to the consensus that:

1. There is a need to cut down the total cost of a wedding and related expenditure.
2. The barat at the wedding should not have more than 25 persons in it and the participation of women in the barat was restricted.
3. The custom of tervi bhoj after the death of a person was called unnecessary and was barred.
4. All the divorce cases will only be heard by the panchayat of the village.
5. In case of divorce, without any ground for divorce or fault of the girl, the husband’s family shall pay a fine of Rs 11,000 and will face banishment from the community.
6. There won’t be serving liquor at a marriage gathering.
7. Appreciation for adhering with these guidelines of the khap was announced.

The implementation of these social reforms has been the main issue with these judgements of the khap panchayat.

Case of Sheoran khap

In this case of Bhiwani District of Haryana, there was a couple running a nursing home and a high school. In the same area, there were schools of others from other villages under different khap panchayats. The enmity due to competition got intense with time and later turned into violence. The doctor was framed with false charges of raping one of her patients and the wife was obstructed to enter the nursing home. The members of Sheoran khap, under which the Bhiwani district fell, were convicted for unlawful assembly and for setting the hospital on fire. Despite the court’s intervention, members of the khap took the law into their own hands and were guaranteed protection of their interest by the khap itself.

Honour killing

Honour is the most important aspect of a patriarchal society in India. Both boys and girls sustain the honour of the family among themselves in a different way. As per the norms, the girls are the honour of the family and boys as a husband, father and brother have the responsibility to protect that honour. Honour crimes or killings happen when there is an inter-caste marriage, inter-religion marriage, marrying within the same gotra, premarital affairs, inter-class marriages, marriage against parent’s wishes and so on. These acts of violence and death sentencing are justified by the khaps in the name of honour of the community. Some cases of honour killings are:

Mehrana killing, 1991

In this case, a jaatav named Vijendra (earlier an untouchable lower caste) eloped with a middle-class Jat girl of the village with the help of a third person, a friend. Khap panchayat of the village ordered their search and sentenced them to be hanged from the tree and burn them. The order of the panchayat was executed and the next morning all three of them were hanged and burnt alive to death in the middle of the village.

Manoj-Babli murder, 2007

This is an important case in the history of khap panchayats. In this case, the honour killing of a newly married couple Manoj-Babli was taken in cognizance by successive courts. The judiciary convicted the accused in the case for honour killing. Like always, the killing was ordered by the khap panchayat of the Karoara village in Haryana. Although the couple were of capacity to be married and the marriage was not invalid as per any existing laws but the khap believed them to be siblings as both of them belonged to the Banwala gotra. The couple married despite knowing that this would cause sanctions against them from khap, nevertheless, they got married. Later they were abducted and killed by their relatives.

Shiva Kumar and Megala, 2010

In this case, a 20-year-old girl Megala wanted to marry 24-year-old boy Shiva Kumar, but they were not allowed to marry by their families as they were related to each other and she was married to someone else in June 2010. Later, after getting married she eloped with Shiva and when traced, they were abducted. He was killed by the family.

Nitish Katara killing, 2002

In this case of 2002, the victim Nitish Katara was kidnapped and killed for having romantic relations with politician DP Yadav’s daughter, Bharti Yadav. He was killed by her brothers, Vikas Yadav and her cousin Vishal Yadav. As per the investigation, Katara received threatening messages from Yadav family various times. He was taken to a drive by the brothers of Bharti when Nitish and Bharti were attending a mutual friend’s wedding. As per the report, 3 days later Katara’s dead body was found near a highway. He died due to multiple hits of a hammer and then set ablaze. In this case, the Supreme Court sentenced Vikas Yadav 25-year long jail time for the murder. Although the case doesn’t involve an active role of khap panchayat but still shows the gravity of honour killing in India because of the caste system and khaps (gotra).

Informal justice vs formal justice in the context of khap panchayats

Khap panchayats played an important role in the administration and unification of villages in the past. Mughal rulers and the British government also recognized their importance. The popularity of the khap panchayat was derived from their ill-repute for fair working, so much time could be saved in panchayat hearing which usually is wasted in legal judicial hearing due to procedural technicalities and khap panchayat can easily reach to a resolution of dispute even among bigger groups and while doing so also maintain the values of brotherhood among the community members.

After the establishment of a legal framework for dispute resolution and justice providing institution by the state, one can seek justice without being burdened by the gotra or the caste of an individual and without discrimination. There is a common practise among the khaps that the pradhan and members of the panchayat stick to the traditional conventions and customs of the community and because the majority forms the panchs (members of the panchayat), the customs of majority is forced upon the minority. Also, khap panchayats are considered accountable because the hearing procedure is held in open where anyone can join the hearing making it more transparent. The principles on which a khap panchayat work are that of ‘bhaichara’ so the arbitration and settlement are mostly accepted without much fight and maintains peace. 

Those who advocate for continuation and working of the khap, argue that in past khap panchayats have played a very positive role. And a logical counter to this argument is, if these khap panchayats were so valued in the past why are they making such diabolic judgements now? The biggest dilemma is even though there is a working and well-established legal framework in the country, they are still violating law and order of the State. Again, because local governments and other governments are dependent upon khap panchayats for community votes they never interfere with their working. Khap panchayats are not scared of either police or law due to the ignorance of the Government. Although the past is important to be remembered while shaping policies for the future, we should also put a stop to past ill practises. Their actions in the form of a quasi-judicial body degrade the position of the judiciary getting their authority in a lawful and constitutional way.

Developments in the status of the khap panchayat

It is significant to note that these Taliban-style caste courts have inflicted a lot of atrocities. The extent and frequency of their malpractices have made it possible for several developments to take place. These developments defined their status and tried to limit their scope of actions in the society. Some developments through the form of judicial judgements and pronouncements are:

Smt. Laxmi Kachhwaha vs. The state of Rajasthan (1999)

In this case, for the betterment and protection of women and other weaker-sections of some communities, a Public Interest Litigation (PIL) was filed in the Rajasthan High Court. The court in its judgement held that the power of khap panchayat to give judgements are ultra vires. It was held that they had no jurisdiction to order social boycott, fine imposition or violate any basic human right of any individual.  They gave directives to the State to legislate necessary policies or enactment for preventing the abuse of power by restraining such khap panchayats from further exploiting the people. In response to that, the Rajasthan State Human Rights Commission issued some strict directives to the police authorities of the state in its communication letter. Directives were for the competent authority to collect details of all the panchas participating in khap panchayats and take action against them under the National Security Act. The directives further provided that no government social benefits policy will be provided to them among other amenities.

State of UP vs. Krishna Master (2010)

In this case, the Apex Court made a landmark via its judgement. The Supreme Court awarded life sentence to the three accused of honour killing, for murdering six persons of a family. Also, the Court said that killing of a whole family in the name of honour of the family will be dealt with as a rarest of the rare case. The court explicitly made it clear that all those willing to save the honour of their family by taking someone’s life should know that the end is life penalty.

Similarly, in the earlier mentioned Manoj-Babli murder case the five accused were convicted with life imprisonment by the Haryana High Court. The Court also ordered necessary action against police personnel who delayed the case.

Sujit Kumar vs. State of UP (2011)

In this case, the Allahabad High Court observed that although our constitution itself safeguards secularity and liberalism, still police and accountable authorities seem not to take any steps to counter these barbaric and demonic acts. The murders in the name of honour shall not get away easily. 

Arumugam Servai vs. State of Tamil Nadu (2011)

In this case, while reiterating the marriage rights of a person, the Court stated that one can marry whoever they like once achieving majority with consent. If the parents don’t agree to their relationship in an extreme case they can only sever their social and personal relations with the couple but can not give threats or commit harassment or any form of violence. The Court stated that the act of khap panchayat to institutionalize the act of honour killing of those who get married defying the norms of the village or khap panchayat is completely illegal and should be stopped.

The Court directed all the State authorities and policy throughout the nation to make sure that in inter-caste or inter-religion marriage of both the partners being major shall not be harassed. If anyone does so, he shall go through legal prosecution at the earliest with sternest penalties if convicted. Also, the State Government is required to immediately suspend the District Magistrate/Collector and SSP/ Sub-Inspector of districts policies and take action against and criminally prosecute them if they had the knowledge of such activity and did not take action in time to prevent it. They should be prosecuted if they did not apprehend and arrest the culprits and charge-sheet them for that they would be considered as an accomplice to the whole act.

Inputs from the Government

Recognising the need for a special law to control and apprehend those committing honour killing, the Central Government has made its intention to bring such law clear. As per the proposed law, some provisions would be to punish the whole panchayat or victim’s families with capital punishment or life imprisonment, if their sanctions result in the death of victims. The death must happen in consequence of something that the khap panchayat does not approve of and feel discriminatory against it. The proposed bill shall shift the onus of proof to the accused to prove that he or she did not commit honour killing.

The draft bill shall make the addition of a Clause to Section 300 of Indian Penal Code, 1860. There will be amendments to the Indian Evidence Act, 1872 and the Special Marriage Act, 1954 to delete the provision that talks about, 30 days prior notice period for solemnization of marriage under the said Act. The new bill shall provide a new definition of honour killing for the purpose of treating it as a special crime and better prosecution of accused under its provisions.

The law commission has also proposed legislation namely ‘the Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011’. The reason and objective for this Act are to stop evil practices of honour killings and related crimes and safeguard the lives of people who might be endangered because of the existence of khap panchayat and related institutions. The Act will prosecute persons or groups who are actively involved in the exploitive and violent actions of the khap panchayat. Innovatively, this Act bars the candidature of a person to contest an election.

Recommendations

The caste panchayats and their evil practices will continue unless banned as they are not an elected body yet continue to work with popular support. This is important to understand how these archaic institutions get their power among all the constitutional institutions such as Panchayat, Judiciary and State Government. The Indian Judiciary has, again and again, shown commendable activism to constrict the khap panchayat and evils done by them. However, still continuing and growing illegal activism of khap panchayat shows the failure of its policies. As they are not a statutory or constitutional body or can not drive legality for its existence from any source, their decisions are not legally enforceable but their terror could only be curbed by a complete ban on them. 

The Delhi High Court in its judgement of Naz Foundation vs. Govt. of NCT of Delhi, 2009 already stated that constitutional morality supersedes public morality and in this case, khap panchayat could not be defended in the name of public morality. As far as khap panchayats and honour is concerned, it is not honourable to kill an innocent person. Also, it is necessary to punish those who violate human rights to protect their harsh, derogatory and illegal practices associated with their religious views. Some suggestions in the context of the above-presented points are-

1. The urgent need for enactment by the parliament to finally control or stop the practices of khap panchayat is to be realized.
2. Punitive provisions are required similar to those presented by the law commission that talked about barring a person from contesting election if found a part of such khap panchayat. Similarly, anyone proved to be part of such khap panchayat assembly shall attract criminal liability and should be punished accordingly.
3. The amendments in the Special Marriage Act, 1954 are required to decrease the registration period window from one month to one week. So that the marriage could get legal validity sooner, for getting protection from the law sooner.
4. Amendments to the Indian Evidence Act, 1872 are also necessary for shifting the burden of proof from the prosecution to accused to prove their innocence in case of honour killings or related crimes.
5. Lastly, amendment in the Indian Penal Code should be made in the form of an addition of a provision to Section 300 which talks about murder. The provision should define honour killing as a special crime punishable as a rarest of rare case. This amendment would widen the scope and ambit of Section 300 so that it would include cases of death due to instigation, due to harassment or cruelty.

Most importantly, we need answers to certain questions. One of the questions is why do they still continue to exist in the State when there already exists a legally established constitutional structure to handle and execute all such responsibilities whether it being judicial or security or law and order maintenance. In India, we already have a rule of law in the form of the Constitution so why is it not being implemented? Why do those responsible for maintenance of law and order are unable to convict or take action against these perpetrators of crime working with public support without any fear? Although it is already presented that numerous times courts have used judicial activism, yet we are not able to bring any substantive change in the laws and policies to deal with the existing situation. Lastly, we need to ask for how long these people will continue to keep on supporting these panchayats and when will they realise that they are supporting something that is against humanity itself.

Conclusion

Khap panchayat is an institution which has played an important role in history in maintaining unity and order in the society. Khap panchayat emerged as a social body responsible for the administration and security of all the villages that fell under its territory. As an administrative body, there were certain norms and rules which became law. In the modern era, not all rules could be turned into law, so the khap panchayats are still ruling with norms that may or may not find legal enforceability. In a khap, the most common notion is that all members of a village or gotra share the same ancestry and that way they are all siblings and are not allowed to form a matrimonial relationship. In the past, many times these incidents of marriage have been punished by the khap panchayats with death sentences and such actions are called ‘honour killing’.

The Indian Judiciary has many times shown its judicial activism by condemning these practices and issuing directives to the competent authority to take cognizance of these activities. It is suggested that in order to tackle the existence and barbaric activities of these panchayats, we need amendments in existing laws and also the enactment of new laws if necessary. By the means of a number of case studies, the barbaric nature of this institution is tried to be showcased. Lastly, the question of social interference is raised. Even though there is a State administrative organ and judiciary, khap panchayat is still able to find popular support despite them. As khap panchayats are non-political bodies and other political parties depend on them for votes and support, they are rarely challenged. So if the popular support to khap panchayat could be turned against them we can find a permanent solution to this problem.

References

• http://www.legalserviceindia.com/legal/article-2425-a-socio-legal-study-on-honour-killing-as-a-crime-in-india.html
• https://www.mid-day.com/articles/nitish-katara-murder-case-honour-killing-cases-vikas-yadav-vishal-yadav-conviction/17443183
• http://www.ijcjs.com/pdfs/kavitaijcjs2011i&iind.pdf
• https://www.google.com/search?q=khap+panchayat+as+a+judiciary&oq=kha&aqs=chrome.0.69i59j69i57j35i39j0j46j0l2j69i61.1401j0j7&sourceid=chrome&ie=UTF-8
• https://www.researchgate.net/publication/329311612_KHAP_PANCHAYATS_IN_INDIA_PRECEPTS_AND_PRACTICES
• https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/215971/6/06_chapter%203.pdf

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