Role of Caste Panchayats in Justice Administration

A Critical Appraisal

Bidisha Mahanta A3221510004, 4th Sem. BBA LL.B. (Hons.) 2010-15

Table of Contents

ACKNOWLEDGEMENT .......................................................................................................... 3 INTRODUCTION ...................................................................................................................... 4 THE CONCEPT OF HONOUR AND KHAP PANCHAYATS .............................................. 6 PRICE OF HONOUR : CASTE PANCHAYATS AS INSTRUMENTS OF TERROR ............. 10 UNLAWFUL INTERFERENCE OF CASTE PANCHAYATS WITH MARRIAGES IN THE NAME OF HONOUR : A SUGGESTIVE LEGISLATIVE FRAMEWORK ............................ 13 Draft Legislation : ................................................................................................................. 14 CONCLUSION ........................................................................................................................ 17 BIBLIOGRAPHY ..................................................................................................................... 18

ACKNOWLEDGEMENT
I would like to thank my Constitutional Law teacher , Mr. Saurabh Chandra, for giving me this project topic which helped my understanding of such a critical topic and also for guiding me every step of the way.

INTRODUCTION

The love of the intellectuals Indians for the village community is of course infinite if not patheticWhat is the village but a sink of localism, a den of ignorance, narrow mindedness and communalism? Dr. B. R. Ambedkar, during Constitutional Assembly Debates, 1948. What Ambedkar prophetically said in the year 1948 is the currently the state of affairs in Indias villages where "institutions" such as Khap/Caste Panchayat not only exist and flourish but are also being nurtured by the political class of our country. Dr. B. R. Ambedkar was of the firm view that the village in India forms the social unit of society which thereby requires going through a profound social change. However, the Indian society in general and its countryside in particular, as it today, never witnessed the unfolding of the process of enlightenment. The project of enlightenment in this country was a nonstarter from the day one. Hence, as the consequences we still see continuance of these caste panchayats to follow a certain "code" which is an unwritten law for them, through which they save and defend their "honour" and in the process going to the extent of murdering people for the sake of this "honour", of course with the sanction of their whole community.

What is this "honour" which these Caste Panchayats try to "save" and what is so very important in this honour that they shamelessly claim pride for? And what on earth gets them into such acts of frenzy - killing people - even young men and women in order to defend this honor? Answers to these questions are not simple and unilinear but are quite complex. In other words, in order to answer these question one has to look at at how caste, class and gender operates in rural and indeed in many parts of urban India.

A Khap is a fairly old system of social administration in the villages of Northwestern India covering Rajasthan, Punjab, Madhya Pradesh, Haryana, NCR, and parts of Western Uttar Pradesh. A unit of khap takes care of the social affairs of almost 84 villages from the same caste. It has also been mentioned in some news reports that Khaps Panchayat plays an important role in regulating the society, for example in some instances Khaps have been able to prohibit consumption of liquor. They help in regulating the society in a certain way which keeps the traditions intact and thus helps in strengthening the bhaichara (brotherhood) among the community. Having said that, lets see what Khaps really are and why do they still exist, in these times of atleast formal democracy in India. Khap Panchayats are the self proclaimed arrangement of caste lords in a village and enjoy full legitimacy and authority among the sections of their caste - community. Among their briefs - the most primal of which is the custodianship of "honour", is to order brutal maiming, lynching or even killing couples who marry either in the same gotra (there can be numerous gotras within a caste) or who "indulge" in inter caste marriage. While in the former, that is marrying in same gotra, the "logic" purported is that the couple are in fact "brother and sisters" (of the same gotra) and therefore their marrying each other is an assault on their honour (in some cases of this kind, the wife was forced to tie Rakhi on her husband - a simple way to declare a married couple- brother and sister). In the latter kind of honour breach, the punishment is generally simply that of death. The breach of honour is of more serious kind here. The only thing which is left for the Khaps here is, is to discuss the ways to deliver this death to the transgressor.

It is this latter sphere - the absence of sanction to inter-caste marriage - which forms the bed rock of our village society and in its final analysis gives the material conditions for the institution like caste/khap Panchayat to survive. It is here in this sphere of contentious /inter-caste marriages that we witnessed the various archaic social factors working behind these caste panchayats. In other words, the caste panchayats are the logical outcome of the caste relations in rural society which derives its authority from defending the honor of a caste group which in turn necessitates the cohesiveness of the same.

THE CONCEPT OF HONOUR AND KHAP PANCHAYATS

Before we further delve upon this issue lets see what is this whole concept of "honour". Honour or for the Hindi speaking people, izzat is the central reason for the functioning of these caste panchayats. In the popular perception of rural society and as well as in the Hindu scriptures, women are the repositories of this izzat of a community. The greatest danger to this ideology of izzat comes from the woman. In the warped logic of the caste system that dictates terms of life in villages, a female "dishonours" her family/clan/ caste and community by her "shameful conduct". Why is their conduct termed "shameful"? To understand this we should see what Manu, theLaw Giver of the codified Hindu caste system writes for women in Manusmriti: (translated)

II. 213. It is the nature of women to seduce man in this (world). For that reason the wise are never unguarded in (the company of) females.

IX. 14. Women do not care for beauty, nor is their attention fixed on age; (thinking), (It is enough that) he is a man, they give themselves to the handsome and to the ugly.

IX. 16. Knowing their disposition, which the Lord of creatures laid in them at the creation to be such, (every) man, should most strenuously exert himself to guard them.

IX. 17. (When creating them) Manu allotted to women (a love of their) seat and (of) ornament, impure desires, wrath, dishonesty, malice and bad conduct

It is clearly and further stressed in Manusmriti that women should not be made free under any circumstances:

IX. 2. Day and night women must be kept in dependence by the males (of) their (families), and if they attach themselves to sensual enjoyments, they must be kept under ones control.

IX. 3. Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never for independence.

IX. 5. Women must particularly be guarded against evil inclinations, however trifling (they may appear); if they are not guarded, they will bring sorrow on two families.

These above verses coupled with other Codes (which must not be seen in their textual isolation) to be observed for caste purity describes the way caste panchayats operates in rural society. It is these archaic laws ingrained in the minds and actions of rural folks which drive them to uphold their caste linkages and force them to have a closer surveillance on the happening marital alliances. Thus, it is the woman who holds the key to the honour of a caste group and it is by not letting the woman to marry beyond the fold of her own caste (in various instances in the same gotra) that these caste panchayats maintain strict endogamy and thus the honour of their caste group and the "purity" of caste itself.

Now, the crucial thing is to understand what hold this archaic set of laws together with set of modern and formal institutions like Panchayati Raj, Judiciary, Police and the larger State. In India the institution of Panchayati Raj or the third tier of the government was introduced with lots of hopes in order to further decentralise the governing process. The larger objective was to give the power to the last person and make him/ her participate in the governing process. In many states this institution is quite vibrant and the enthusiasm of the people from lower rungs has been visible and effective. This decentralization of the government at the grass root level, if not entirely, has certainly brought the partial democratization in village society. But despite this drive of democratization in Villages of India, there are certain questions which really perplex one such as, why is the case that the elected panchayats had a very limited or no role to play in the matters of governance that are otherwise usurped by Khap Panchayats? What is the role of States law- enforcing agency in such matters that the Khap Panchayats usurp for themselves and indulge in kangaroo courts dispensing (in)justice? Why is there no movement or even noise by the political parties (with an obvious exception of the Left, particularly the CPI(M) taking up this issue) on the brutal violence perpetrated by the dictates of Khaps? Answer to such questions

needs closer study of caste society and its relation with the day-to-day politics in the modern Indian state.

It can be stated that Khaps are the classic example of patron - clientele nature of Indian politics, where these panchayats have been given political patronage and thus have become immune to constitutional framework of law and order. In Haryana, for example, khaps are the crucial channels to galvanise caste based political mobilisation which becomes so very central to the functioning of every political party, that instead of questioning the very existence of khaps, the Khaps controls the lever of political stability. However, there is some resistance to khaps as well, though in minimalist sense but the resistance is growing. The role of increasing democratisation and opening of new economic opportunities has brought a gradual shift in the power dynamics (an example of this can be seen in rural Haryana) between different caste groups. The rising assertiveness of Dalits owing to their socio-political movement as well as sections of them coming up as confident, modern individuals is inevitably leading up to various cases of inter caste marriages and ultimately stiff and violent resistance on the parts of caste panchayats. This section of young people are consistently challenging the idea of such archaic laws and eventually questioning the whole edifice of caste panchayats by defying and discarding the dubious notions of "honour".

To sum it up, two broader propositions can be made for as to why these Khaps still been able to call shots in rural north-western India: Firstly, Caste panchayats are the logical outcome of caste and gender relations in Indian society which in turn is the result of unfinished enlightenment project (primarily movements against Caste and atrocities against women) whereby these panchayats enjoys not merely political support but also drives the local politics. And secondly, the patronization of khaps by the political parties is in turn the result of the hegemonisation of caste relations over the polity, where by the political actors themselves firmly believes and support institution like Khaps and its action too. Thus, its a vicious circle of caste relations, polity, and the absence of anti caste movements in the first place which gives life to khap panchayats and proves to us that without the actualization of broader social change monsters like

Khaps will not only smile on the face of emerging India but will thrive and be defended by the gatekeepers of Indian Polity.

PRICE OF HONOUR : CASTE PANCHAYATS AS INSTRUMENTS OF TERROR

There is an increasing number of "missing girls" in villages in north India, their deaths unreported, killed often by male relatives or by members of her caste; their crime, like Geetas, being their relationship with a man from a lower caste. Ironically, such violence is described as honour violence or killings. In this view of "honour", the caste honour is vested in the chastity of a woman. If she transgresses caste-dictated norms in the expression of her sexuality she shames the entire community. To restore honour, the transgressor and her partner have to be punished. Central to such violence is the subordinate position of women. Strikingly, cases of barbaric violence by families or communities take place among sections of the rural elite. Clearly, a higher economic, educational or social status has no automatic linkage with enlightened or democratic practices. This also raises a question on current perceptions of "development" and "growth" that leave untouched and, indeed, often give added strength to retrograde practices. There are no official statistics on the number of cases of violence against young people who choose their own partners in opposition to the wishes of their families/caste or religious community. But information gathered by the All India Democratic Womens Association (AIDWA) shows a definite increase in states like Haryana, Punjab, Uttar Pradesh. In addition, in the last few years the spread of the politics of religious intolerance has been reflected in violence against own choice marriages when the couples belong to different religious communities. In other states, although opposition may not take extreme forms, the couple faces victimisation at different levels. In Muzaffarnagar district of UP, notorious for such violence, two young persons were, on an average, killed every month for inter-caste relationships in the first six months of 2003 and 35 couples were declared "missing". It is estimated that around 10 per cent of all murders in Punjab and Haryana are honour crimes. The violence includes public lynching of the couple, stripping and parading of the girl in the village, revenge rape and other forms of violence. Those who support the couple could also face punishment.

In many cases, the sentence of punishment is given and executed by caste panchayats. These are all-male groups of self-proclaimed guardians of caste interests and honour which have the support of the richer sections and enjoy political patronage. The most powerful of these caste panchayats are those of the upper and middle caste landowning sections. The caste panchayats function as a parallel judicial structure and elected panchayats are either subordinated to or coopted by them. It is through these caste panchayats that the most regressive social views are sought to be implemented. For example, opposition to co-educational schools, divorce and widow remarriage and support for dress codes for women. Last year, the Rajasthan State Human Rights Commission found the role of caste panchayats in that state negative enough to file a writ petition in the Jodhpur high court for action against them. The commission had also issued orders against the decisions of caste panchayats, which, though not dealing with cases of honour killings as such, strongly criticised their retrograde interventions and punishments in family or land disputes. It strongly advocated a control on all such decisions of caste panchayats as militated against constitutional rights. Dominant political parties in North India have never opposed these barbaric decisions of caste panchayats. The increasing use of caste identity as a tool of mobilisation ensures patronage from dominant political parties in the region to caste panchayats. At the same time, the police and administration often share the concept of (dis)honour and it is extremely difficult to get a case registered. There have been instances when the police have hunted down the adult couple like criminals, handed them over to the girls family where they were killed and their deaths passed off as suicides. The Central government, on its part, has refused to even acknowledge that honour crimes exist. In October 2002, the Indian representative at the UN Social, Humanitarian and Cultural Committee protested sharply against secretary-general Kofi Annans report which correctly included India as a country where honour killings take place. Presumably, the Indian representative was more concerned with saving Indias "honour" since internationally "honour crimes" are associated with countries like Pakistan and Afghanis-tan. The number of such crimes are certainly higher across the border but, in reality, how different are these savage caste fatwas from the worst excesses of Talibanism?

Urgent steps in the political, social and legal spheres are required to defend the right of adults to self-choice relationships and put an end to honour killings. But, clearly, in the Indian context, womens advance, which must surely include the right over her own body and sexuality, is intrinsically linked to an uprooting of caste structures.

UNLAWFUL INTERFERENCE OF CASTE PANCHAYATS WITH MARRIAGES IN THE NAME OF HONOUR : A SUGGESTIVE LEGISLATIVE FRAMEWORK

Incidents of murder and other grave offences committed against persons marrying or proposing to marry sagotras or outside their castes/religions are periodically reported. It is learnt that number of cases goes unreported for fear of reprisals or cascading effects. The intervention of caste/community assemblies in the name of Khap Panchayats, Katta Panchayats etc. in the occurrence of these offences and other related incidents involving serious life and liberty consequences, are frequently noticed. Such assemblies gathered on caste lines assume to themselves the power and authority to declare on and deal with objectionable matrimonies and exhibit least regard for life and liberty and are not deterred by the processes of administration of justice. The penal law lacks direct application to the illegal acts of such caste assemblies and needs to be amended. Meanwhile innocent youth are harassed and victimized while such assemblies continue to wield unhindered authority and also seem to resist any suggestion of being subjected to any social control. The pernicious practice of Khap Panchayats and the like taking law into their own hands and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of law and invasion of personal liberty of the persons affected. Sagotra marriages are not prohibited by law, whatever may be the view in olden times. The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any doubts in this regard. The Act expressly declared the validity of marriages between the Hindus belonging to the same gotra or pravara or different sub-divisions of same caste. The Hindu Marriage Act does not prohibit sagotra or intercaste marriages. The views of village elders or family elders cannot be forced on the willing couple and no one has a right to use force or impose far-reaching sanctions in the name of vindicating community honour or family honour. There are reports that drastic action including wrongful confinement, persistent harassment, mental torture, infliction of severe bodily harm is resorted to either by close relations or some third parties against the so called erring couple either on the

exhortations of some or all the Panchayatdars or with their connivance. Social boycotts and other illegal sanctions affecting the young couple, the families and even a section of local inhabitants are quite often resorted to. The cumulative effect of all such acts have also public order dimensions. In a very recent case Arumugam Servai vs. State of Tamil Nadu [reported in (2011) 6 SCC 405], the Supreme Court strongly deprecated the practice of khap/katta panchayats taking law into their own hands and indulging in offensive activities which endanger the personal lives of the persons marrying according to their choice. Some proposals are being mooted proposing amendments to Section 300 I.P.C. by way of including what is called Honour Killing as murder and shifting the burden of proof to the accused. These proposals have been studied. The views from various quarters at an informal level have also been ascertained. After a preliminary examination of these and certain other models of law, a broad framework of proposed law to deal with the situation has been prepared and annexed herewith.

Draft Legislation :

The idea underlying the provisions is that there must be a threshold bar against congregation or assembly for the purpose of discussing on and objecting to the conduct of young persons of marriageable age marrying according to their choice, the ground of objection being that they belong to the same gotra or to different castes or communities. The Panchayatdars or caste elders have no right to interfere with the life and liberty of such young couples whose marriages are permitted by law and they cannot create a situation whereby such couples are placed in a hostile environment in the village/locality concerned and exposed to the risk of safety. Such highhanded acts have a tendency to create social tensions and disharmony too. No frame of mind or belief based on social hierarchy can claim immunity from social control and regulation, in so far as such beliefs manifest themselves as agents of enforcement of right and wrong. The very assembly for an unlawful purpose viz. disapproving the marriage which is otherwise within

the bounds of law and taking consequential action should be treated as an offence as it has the potential to endanger the lives and liberties of individuals concerned. The proposed law is not in derogation of the provisions of Indian Penal Code which can take care of various offences of serious nature perpetrated by the members of caste panchayats in prosecution of their unlawful objective. The Commission is prima facie of the view that there is no need for introducing a provision in Section 300 IPC in order to bring the so-called honour killings within the ambit of this provision. The existing provisions in IPC are adequate enough to take care of the situations leading to overt acts of killing or causing bodily harm to the targeted person who allegedly undermined the honour of the caste or community. The motive behind killing a person does not furnish real justification to introduce a separate provision in section 300, as is contemplated to be done under the proposed Bill (as published in the newspapers). Probably, the addition of such clause may create confusion and interpretational difficulties. Further, shifting the onus on to the accused facing accusations of involvement in the serious offence of murder etc or abetment thereof is not desirable. Such a move will be against the cardinal principles of jurisprudence accepted and absorbed into our criminal justice system. If burden of proof has to be shifted in such a case, logically, it will have to be done in a large number of other heinous crimes. A holistic approach is called for and any attempt to drastically expand the rigour of criminal procedure to cope up with ad hoc situations may be counterproductive. The introduction of such a drastic provision needs to be avoided. As an alternative to this, the Commission is of the prima facie view that a presumption could be raised in respect of commission of the prohibited acts in clauses 3 and 4 of the proposed Bill, if he or she is a member of an unlawful assembly convened for the purpose of discussing and condemning the perfectly legal conduct of a young couple married or intending to marry. This is necessary having regard to the fact that the task of identification of roles that may be played by one or more members of assembly, is difficult to accomplish as the eyewitnesses may not be willing to depose and the circumstantial evidence will not be strong enough to implicate the guilty. In such a situation, the presumption as envisaged by clause 6 will assume a significant role. In this

context, the Commission feels that the analogy sought to be drawn from the provisions of the Commission of Sati (Prevention) Act, 1987 is not appropriate for more than one reason. Sati is a barbaric, deeply entrenched social evil which was prevalent in certain parts of the country. The magnitude and seriousness of that evil cannot be compared to the problem on hand. More important, the offence of Sati always remained an open affair with all the rituals and ceremonies attached to it and the persons actively participating therein could be identified without difficulty. The accusations in such cases are based on solid evidence.

CONCLUSION

In retrospect we can conclude that the culture of Caste Panchayats have to come to an end, sooner or later, as the justice administered by them, under the umbrella of honour and moral policing, is against the constitutional rights guaranteed under Chapter III of the Constitution of India. There is blatant disregard for the Right to Life and Personal Liberty as under Article 21 of the Constitution of India. The recent judgement awarding capital punishment to five members of a Khap Panchayat due to honour killing has sent shock waves through the communities as it reminded them that even they were under the purview of law and not above it. Thus in light of such cruelty and violence inflicted on a person by such panchayats having the backing of an ignorant and fearful community, strong legislative measures are the call of the day in such circumstances.

BIBLIOGRAPHY

1. http://lawcommissionofindia.nic.in/reports/cp-Honour%20Killing.pdf 2. http://www.pragoti.in/node/3647 3. http://www.sacw.net/article1048.html 4. The Times of India, 14 April 2004 5. Rohit Mullick & Neelam Raaj (9 September 2007). "Panchayats turn into kangaroo courts". The Times of India. 6. THE CONSTITUTION OF INDIA, 1950. 7. www.hindu.com/2006/11/26/stories/2006112602221000.htm 8. www.outlookindia.com/taghome.aspx?tag...name=caste+panchayats 9. southasia.oneworld.net/.../caste-panchayats-defying-the-law-of-land 10. articles.timesofindia.indiatimes.com Collections Villages