Events & Issues

New Delhi, 10 February 2014

Khap Panchayats

PARTIES WOO LAWLESS SYSTEM?

By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

The election season seems to have put khap panchayats in the radar of political parties, if recent statements by some are taken into account. The Aam Admi Party seems to be toying with the idea of having a dialogue with khap panchayats that are active in many villages. Likewise, Haryana Chief Minister Bhupinder Singh Hooda is learnt to have likened them to NGOs and RWAs, thus dismissing Finance Minister’s Chidambaram’s opinion of khap panchayats being “retrograde organizations.”

Well, the parties may argue that these panchayats do exist whether we like it or not, but there are many who may think that holding talks with them is like playing with fire. But do the parties really care? The recent most incident of gang-rape of a tribal woman as a punishment inflicted by a khap panchayat in Birbhum district raises questions beyond atrocity on a woman. It demands answers including action as they relate to law and justice, the de facto authority of local administration and police, the role and power of khap panchayats viz State authorities, and concepts of crime and punishment outside the legal system that are in vogue – in short the state of governance in the area.

The incident also exposes the iron hold of traditional leaders and institutions, weakness of official law enforcing machineries, and superstitious beliefs of some people in old order taboos, caste norms, and centuries’ old social customs.

The consequences are dreadful. They show the resilience of institutions of “little tradition” to withstand all-round political, economic, social and cultural changes that have taken place. Modernized India hasn’t established itself leave aside the question of asserting itself. 

The survival and active functioning of khap panchayats is making news very frequently. These are not about any constructive work or progressive ideas but about obstinate pursuit of archaic ideas and ways of life and unrelenting perseverance in preserving, protecting, and promoting them against the fast changing society.

These panchayats have voluntarily assumed the role of guiding the villagers to lead a particular form of life. They are self-appointed and command the following of local people. One important power they wield is judicial to settle local offences, disputes and to punish offenders. In both, they are not guided by our civil, criminal and other laws, but by their own ideas of “right” and “wrong” enforced in the name of tradition. In discharging this power, they also assume the right to reform and punish deviants and offenders.

The surprising element in this saga is the ability of khap panchayats to exist, function, and dispense justice right in front of State administration and judiciary. From where do they get their authority? Why people listen to them?  What is their object in flouting State legal system so openly? These queries bother law abiding citizens all over the country, while those within the area of influence of these panchayats undergo a state of mental conflict. 

In the matter of law and justice, the most elementary principles we need to follow are the prescribed law, due process, and fair judgement. When there is reason to suspect that these principles are flouted, it is the duty of every citizen to ponder and act.

Khap panchayats are extra-legal bodies and their fanciful “judgements” by whatever name they are given - “dictates”, “fatwas”, “farmans”, “agreements”, or “orders” -   have no legality. Khap panchayats and their crude verdicts are a challenge to the legal system in India. Not only in villages, but in some cities also, they seem to be functioning mostly in slums to adjudicate local disputes and matrimonial and family quarrels.

Strangely, political parties are not serious about curbing the activities of these illegal bodies despite criticism through media and civil society organizations. The Aam Admi Party leader even mentioned that he would meet khap panchayat leaders in Haryana which is likely to send wrong signals about the party itself. Incidentally, Haryana is on news for “honour killing” cases, and is known for patronizing these panchayats.

There is some reluctance among political parties in condemning wholesale the very existence of extra-legal institutions purporting to do judicial work obviously to avoid incurring the wrath of influential grassroots level leaders. They only express mild disapproval to corporal punishments inflicted by these bodies.

It is left to women’s organizations and women social activists, journalists and public spirited men and women to take up issues of harsh punishments like excommunication, or physical injury and death meted out by khap panchayats to mostly women. Gang rape as a punishment, for instance, is not exclusively a woman’s problem. It is one of the cases of flagrant violation of law and justice – a criminal offence.

Non-professional judicial bodies with and without the approval of the government have always existed in many States even in independent India.  Traditional caste panchayats have had no legal basis but survive in secrecy. 

Nyaya Panchayats were instituted in the 1960s in the era of Panchayati Raj and Community Development Programme and were statutorily vested with some judicial powers as a measure of decentralization of judicial power. They were granted limited civil and criminal jurisdiction. Their members were partly elected and partly nominated in most States, but the Law Commission rejected the system of nomination by the government.

However, official reviews and Law Commission reports were critical of their functioning. Frequent appeals were going to law courts against the decisions by Nyaya Panchayats, and doubts regarding their efficiency and impartiality were raised. Law Commissions, therefore, recommended their abolition altogether. 

Administering law is a technical function. It requires legal knowledge and high level of understanding of situations. There is no place for politics, money, and muscle power or illegal custom and conventions. 

It is useful to recall our experience in conducting Nyaya Panchayats while dealing with khap panchayats, which are informal and illegal. Where Nyaya Panchayats with elected and some officially nominated members failed, it is futile to expect self-appointed village judges to hear and settle disputes and problems and uphold the rule of law and due process of law.

The experiment of Lok Adalats (People’s Court) started in 1980s as part of legal aid schemes for settlement of  disputes through conciliatory methods have achieved some success in ensuring speedy justice and easy accessibility to all. They are found efficient in resolving road accident cases. Statutory Lok Adalats are formed under a serving or retired judge. Such Adalats can provide speedy and inexpensive justice.

Existence of khap panchayats may be defended under the fundamental right to form associations. But no association has any right to function as a judicial body. We are living in the age of human rights. We believe in the rights of even children who are under our custody. We enforce the rights of unborn foetus.  Our law punishes foeticide and has prescribed punishments for sex-determination tests.

Parents have no authority to award physical or mental punishment to their own children. In western countries, ill treatment of children, even scolding their own wards by parents, is a punishable offence. Corporal punishment is banned in schools in India.

All these mean that no citizen has a right to punish anybody for any offence.  It is for the law to decide what constitutes a crime and what is the punishment for it? It is a sad state of affairs that we have to speak and write long to bring home the point that khap panchayats are illegal and have no authority to make or administer law or to prescribe and award punishments.

(Copyright, India News and Feature Alliance)