A ‘Khap Panchayat’ is a village organization, though not legally constituted, yet backed by social sanctions, which act as the local guardians of the village customary laws and ‘virtues’ or ‘values’. Dr. G.S. Rajpurohit and Dr. Anand Prakash, in their paper, have defined it in the following terms:-
“Khap Panchayats are the self-proclaimed courts which enjoy full legitimacy and authority among the segments of their caste as the custodian of honour. These Panchayats have no constitutional basis and they are not legitimate courts. Under this unconstitutional system, all members crouch around a Chabutara in a village in order to take quick, unilateral and incontestable decision on multiple issues like social transgression, marriage, offences, property rights or regarding situation threatening tranquillity in a village.”
Khap Panchayats should not be confused with the Panchayati Raj institutions functioning in every village as the latter is a Constitutional mandate to decentralize power and promote self-governance. However the former is an unconstitutional and undemocratic institution which has no legal sanction or basis of existence.
Exact origin of Khap Panchayat cannot be found out but we may broadly consider the period of its development in 600 AD. In the ancient times, when the man was living itinerant life, villages were being formed at a rapid rate and the society was heading towards civilization and better standards of living. Khap Panchayats are understood to have come into existence as a social system for maintenance mechanism in those agrarian societies. They are the legacies of the tribal councils, formed by various tribes with a purpose of facilitating resolution of intra-tribal disputes and inter-tribal inter-course. The Khap Panchayats generally consist of powerful elements of the dominant caste. They are generally senior citizens who claim to be considered as upholders of village norms, custodians of rural cultures and guardians of public morality. They have a great hold both at the local and provincial level.
CLASSIFICATION OF KHAPS IN HARYANA
Khaps could be classified into following categories:
Based on Single Caste and Single Gotra
Based on Single Caste and Multiple Gotra
Based on a Multi-caste and Multiple Gotra
(i) Based on Single Caste and Single Gotra: A particular geographical area is dominated by a single Gotra of a particular caste. The Gotra has a sizable number of villages in that area, e.g. Dahiya Khap, Huda Khap, Malik Khap, Sangwan Khap and so on all of which are located in Sonepat, Rohtak, Bhiwani, the districts of Haryana and the Balyan Khap in District. Mujaffarnagar, Uttar Pradesh. These Khaps have about 40084 villages.
(ii) Based on Single Caste and Multiple Gotra: When the entire villages and area dominated by a single caste, with some of the villages dominated by various Gotras, it is considered as Single Caste and Multiple Gotre system. Chaubitii organization of 24 villages of Meham in the Rohtak District of Haryana is an example of such Khap.
(iii) Based on a Multi-caste and Multiple Gotra: This system is renowned as having villages in particular geographical area of which some villages are dominated by a particular caste and other villages by other castes but different Gotras. Bawal Khap of Chaurasi in the Riwari District may be considered as this type of Khap.
SOCIO-LEGAL CHALLENGES POSED BY KHAP PANCHAYATS
In pursuit of their functions, these Khap Panchayats pose various socio-legal challenges to the society. Some of them are listed as follows:-
1. Honour Killings:
Honour killings are murders committed by family members and the people belonging to concerned caste on the verdict of Khap Panchayats or family members of such who are believed to have brought shame or dishonour on family name. The apparent shame is caused by a victim refusing to enter into an arranged marriage or for having a relationship that is considered to be inappropriate by the family or community. The perceived dishonour is normally the result of the following behaviours, or the suspicion of such behavior:
Dress in such a manner which, is not acceptable by the community;
Marriage by own choice (against wish of family or community);
Engaging in certain sexual acts, including those with opposite or same sex.
In Bhagwan Das vs. State of Delhi (2011), where the Apex Court opined that-
"There is nothing honourable in honour killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal mind. In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate honour killings should know that the gallows await them."
2. Forced Marriages:
In Khap regime, sometimes marriage performed by pressurizing one or both the parties and without their free will and free consent. The victim of such marriage is forced through coercion, fear, abduction, threat, inducement and deception. A forced marriage can take place, between the people of any group, children, an adult and a child or between adults. The victims of forced marriages experience torture, abduction, threaten, mental and are even forced to commit suicide.
3. Female Foeticide:
The killing of an unborn female foetus is known as female foeticide. To tackle this heinous offence, our Parliament had passed the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994. It was enacted to arrest the declining sex ratio by stopping the sex determination tests and penalizing pre-natal sex determination. Apart from this Act, the I.P.C under Sec. 312 to 317 also imposes restriction on termination of pregnancies.
4. Prohibition on ‘Sagotra’ Marriage:
Khap Panchayat prohibits Sagotra and inter-caste marriage. The marriages are governed by Khap on three important principles; those are:
Marriages within the same Gotras is forbidden since in that case a boy and girl are regarded as a brother and sister;
Marriages in the different Gotras are forbidden if a boy and girl belong to the same village or physically adjoining villages;
Inter-caste marriages are strictly barred.
5. Gang rape:
It is shocking to note the diabolical nature of the verdicts of these Khap Panchayats. In 2014, a Khap Panchayat in the Birbhum District of West Bengal ordered gang-rape to be committed on a 20 year old girl in a village named Subalpur, for having affairs with a man from another community. The Supreme Court took suo motu cognizance of the issue and preferred a writ petition for securing the ends of justice in the matter. The Court ordered the State to pay a compensation of Rupees 5 Lakhs to the victim and gave directions in strict terms to adhere to the laws regarding registration of FIR as laid down in Lalita Kumari v. Govt. of U.P. and the above mentioned facts are of the case of In Re Indian Woman.
JUDICIAL SOLUTIONS TO A SOCIAL PROBLEM: JUDICIAL TRENDS
Through a catena of judgements the Indian judiciary has played a vigilant role in curbing the menace of Khap Panchayats from the society.
In Smt. Laxmi Kachhwaha vs. State of Rajasthan (1999), a public interest litigation was filed in the Rajasthan High Court to draw the attention of the Court to illegal functioning of Caste Panchayat on the weaker-sections of the concerned communities, especially on women. The Court observed that these Panchayats had no jurisdiction whatsoever to pass social boycott order, or to impose fine on anyone and to violate the basic rights of an individual. It ordered the state authorities to take steps for preventing the abuse of social influence by restraining such Panchayats from functioning and ensuring arrest and punishment to its members.
In State of UP vs. Krishna Master & Ors. (2010) the Apex Court made an extraordinary move by awarding life sentence to the three accused of honour killing who murdered six persons of a family. The Bench further observed that "wiping out almost the whole family on the flimsy ground of saving the honour of the family would fall within the rarest of rare cases.
Similarly, in Arumugam Servai vs. State of Tamil Nadu(2011), the Apex Court interpreted law on this matter that in case of age of majority, the young couple has statutory right to marry. What the parents do is that they can cut off their social relations with them, but cannot give threat them or kill them. The Court further observed that "Khap panchayats (known as kata panchayat in Tamil Nadu) often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. It is wholly illegal and has to be ruthlessly stamped out. .... there is nothing honourable in honour killings or other atrocities and, in fact, it is nothing but barbaric and shameful murder.”
KHAP PANCHAYATS AND RIGHT TO MARRIAGE – CASE STUDY
Shakti Vahini v. Union of India (2018) 7 SCC 192
Facts - In this case, the petitioner which is an organization named “Shakti Vahini” was authorized to conduct a Research Study on Honour Killings in Haryana, Punjab, and Western U.P. in which they have come across the fact that these instances are rising by leaps and bounds in the society. The petition has been filed under Article 32 of the Constitution of India, seeking directions of the court to the Government (both State and Central), Ministry of Home Affairs and Ministry of Women & Child Development. The Union of India stated that in order to tackle this issue a bill named “The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill” has been recommended by the Law Commission. Further, several state governments have filed affidavits and have given their responses towards the writ petition.
Judgement – Hon’ble Former CJI Dipak Misra gave the judgement along with his companion Justices. He quoted the important extracts of the 242nd Report of Law Commission which concludes the scenario of “Honour Killing” or “Honour Crimes”. The draft bill recommended by the commission refers to ‘Khap Panchayat’ and this term includes any person or group who gathers, assembles or congregates with an intention to condemn any marriage. The choice of a woman in choosing her partner in life is a legitimate constitutional right. It is founded on the individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”.
The court in this case observed that, “The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness”. The major argument on behalf of the counsel of “Khap Panchayat” that this body is playing an important role of spreading awareness about the prohibition of ‘sapinda’ and ‘sagotra’ marriages was rejected by the court by stating that in case of recognition of matrimonial status, the parties can approach court and law shall take note of it. Moreover, the Court has provided preventive, remedial and punitive measures to construct a strong mechanism that could spot and punish the supporters of “Honour Killing” and directed the states to carry out these instructions within 6 weeks.
The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliance) Bill, 2011:
Law Commission has drafted a Bill to prevent interference of any per ton in the matrimonial alliance in the name of honour and tradition. The draft bill also intends to declare such panchayats unlawful. The draft legislation proposes that "no person or any group of persons shall gather, assemble or congregate at any time with the view or intention to deliberate on, or condemn any marriage, not prohibited by law, on the basis that such marriage has dishonored the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family or the people of the locality concerned. Such gathering or assembly or congregation shall be treated as an unlawful assembly and every person convening or organizing such assembly and every member thereof participating therein shall be punishable with imprisonment for a term of not less than six months but which may be extended to one year and shall also be liable to fine up to ten thousand rupees." The Bill further says that any member of an unlawful assembly who alone or in association with other such member counsels, exhorts or bring pressure upon an, person or persons so as to prevent, or disapprove of the marriage which is objected to by the said member of the unlawful assembly or creates an environment of hostility toward such couple or either of them or their relatives or supporters, shall be deemed to have acted in endangerment of their liberty.
The Endangerment of life and Liberty(Protection, Prosecution and other measures) Act, 2011:
Shocked by the growing cult of honour killings and swiftly dispersing roots of Khap Panchayats across the country, the Law Commission of India has also proposed legislation namely 'The Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011, to prosecute persons or a group involved in such endangering conduct and activities. Under the proposed law, the act of endangerment of life and liberty shall mean and include "any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent or threatened and shall include: (a) enforcement of measures such as social boycott, deprivation of the means of livelihood, denial of facilities and services which are otherwise generally available to the people “the locality concerned and, (b) directly or indirectly compelling the persons concerned to leave or abandon their homestead in the locality" . Further, it also provides that "it shall be unlawful for any group of persons to gather, assemble or congregate with the.... intention to deliberate, declare on or condemn any marriage or relationship such as marriage between two person of majority age in the locality concerned on the basis that such conduct or relationship has dishonoured the caste or community or religion of all or some of the persons forming part of the assembly or the family or the people of the locality concerned‟. The draft legislation also speaks that "any person or persons instrumental in gathering of such an assembly or who takes an active part in the execution of the assembly shall also be subjected to civil sanctions." viz, they will not be eligible to contest any election to any local authority and will be treated as a disqualified candidate.
It has been a high time to put a full stop on these prevailing malpractices and time demands, altogether, annihilate harsh and brutal practice of Khap and make the people aware about their rights because working of Khap in the name of honour and tradition is nothing but harm to basic human rights of individual. It is now essential for legislature to legislate on such a burning issue of Khap and also it requires from law enforcement bodies to prevent these derogatory practices. India being a member of the UDHR, the ICCPR and other international conventions, is also having a responsibility to initiate the mechanism which can curve up this problem. But only stringent legal measures will not be sufficient. This problem is the result of a centuries old society, having the feudal and patriarchal set-up, which can do anything for its culture and tradition. Here the need is not only to change the mindset of people today but also to step out of the old and outdated traditions so that these unauthorized actions can be prevented. With lacking of flexibility in approach the leaders of Khap may be found as uneducated senior persons of the Khap society. Through providing education to them and bringing awareness about present and prevailing law among them can make them working accordingly. Women participation is needed to encourage at the central level and a fair hearing of everyone before the final decision of the Khap Panchayat should be essential. This can immensely helpful in bringing social reforms in rural area. The recommendations would be:
The enactment of the 2010 Bill against Khap Panchayats;
Village community to be made aware and sensitized about evils of these institutions;
Increase in education especially the female education to tackle the situation;
Executive at the grass root level headed by the District Magistrates to keep vigilant checks on these Khap Panchayats and atrocities committed by them; and
Setting up of special dispute redressal bodies at village levels so that people don’t need to depend on such undemocratic bodies.
Dr. G.S. Rajpurohit and Dr. Anand Prakash, Khap Panchayat in India: Legitimacy, Reality and Reforms, IJAPRR International Peer Reviewed Refereed Journal, Vol II, Issue III, p.n. 81-90, 2015.
Singh, Ranbir, The Need to Tame Khap Panchayats, Economic and Political weekly p. 17, Vol XLV No 21.
Sangwan, K.S., Khap Panchayat in Haryana, available at www.Jatland.com/forum last seen on October 29, 2020.
Baij, Nath, Honour Killings; Violation of Human Rights of Women, Indian Journal of Socio Legal Studies . ISSN 2320–8562 .(Special Issue) 2014.
Bhagwan Das v. State (NCT) of Delhi Criminal Appeal No. 1117 of 2011.
Srivastava, Sakaar, Honour Killing in India, http://www.academia.edu/4806197.
Lalita Kumari v. Government of UP 2013 (13) SCALE 559.
In Re Indian Woman W.P. (Criminal) No. 24 of 2014 SC.
Kachhwaha, Kavita, Khap Adjudication in India: Honouring the Culture with Crimes, International Journal of Criminal Justice Sciences , Vol 6 Issue 1 & 2 January- June / July – December 2011 (Combined Issue), p. 301.
State of UP vs. Krishna Master & Ors. AIR 2010 SC 3071.
Arumugam Servai vs. State of Tamil Nadu(2011) Criminal Appeal No. 958 of 2011.
Shakti Vahini v. Union of India, Indian Legal Solution, available at https://indianlegalsolution.com/shakti-vahini-v-union-of-india/#:~:text=Introduction%3A%20Shakti%20Vahini%20v.,the%20crime%20of%20Honour%20Killing. Last seen on 29.10.2020.
Name – Shirsho Ghosh
Institute – Amity University Kolkata
Year – 3rd Year (6th Semester)