Khap Panchayat: Informal Justice v. Formal Justice
KHAP PANCHAYAT: INFORMAL JUSTICE V. FORMAL JUSTICE
- Joncy Lakhani
ABSTRACT
The Khap Panchayat provides with informal justice to the village people and acts as their “custodian of honor”, the informal justice provided by them are most of the times ‘injustice’ in the eyes of law as it violates the constitutional provisions of the nation, and infringes the rights of the common people, therefore both the informal justice and formal justice providing body stands opposing each other as the illegal acts and barbaric decisions of informal justice providing body infuriates the formal justice providing body to protect the rights of their people and stop the wrongs and shameful murders in the name of ‘honor killing’ by the khaps. This informal justice provided by khap panchayats elderly persons, is solely feudal and patriarchal in nature and they deserve brutal and harsh punishments for going against the laws, as they take the laws in their own hands and results in to the kangaroo courts which are completely illegal. Kangaroo courts are nothing but the ones which uses unjustified and unfair methods of providing justice and are not at all supported by the state and they stand opposite to each other. Khap panchayat is also included in the kangaroo courts as their actions justifies them to be included in that. The Supreme court in its recent judgement also declared the actions of khap panchayat as illegal [1] in the matter of honor killings promoted by them in the name of saving their culture and traditions and restricting the boy and girl to marry each other if they are from inter-caste, inter-clan or inter-village, the supreme court says the khap panchayats cannot stall marriage between consenting adults.
AN INTRODUCTION
Khap Panchayat is the traditional, local, informal justice providing body most profound in north-western states like Haryana, northern Rajasthan, rural belt of Delhi and western Uttar Pradesh. These panchayats prevail in the rural society and has sowed their seeds deep into the past, since fourteenth century[2].The main objective of these traditional panchayats is to make certain that anyone does not adversely affect the peace of village and abide by the main norms of the rural society which are Unity, Community and Fraternity, which in nutshell safeguards the honor of the society and these panchayats mainly looks after the disputes over property, inheritance and sexual/marital transgressions. These panchayats not only give informal justice but also hand out punishments such as fines (nominal or substantial) to be deposited in a common fund of panchayat, public humiliation (starting from blackening of the face, to shaving of the head, rubbing the victim’s nose in dust and dipping the victim’s nose in human urine)[3], ritual expiation, forcing him/her to throw a feast, beating a victim, or forcing him/her to visit the elders and take a public pledge not to err in future. Informal justice is the part of our society since time immemorial and is in question since the formal justice has dominated, these informal mechanisms derive their power from a group of people forming a community or social groups and are not a part of the government system providing formal justice. social groups or communities have their own categorical faith, ethics, rituals, traditions, customary believes and even their own disputes resolving systems which mainly performs three types of functions, legislative, executive and adjudicative. If we particularly talk about Khap panchayats than they are in every respect unconstitutional and illegal body at times also termed as ‘self-proclaimed courts’ handled by the elderly people of village of superior caste who are often addressed as caste dictators.
Formal justice is the one which is enforced by the state/government which is totally legal and abides by the highest law of land i.e. Constitution and provides formal justice with all due procedure of hierarchy of courts, pertaining to any matter be it civil or criminal. Formal justice dominates every other kind of informal justice as it has power to curtail the voice of any informal justice providing body which announces the immoral and vague decisions such as one of the flabbergasting act of Khap Panchayat is“Honor Killing”[4], and moreover there’s no honor in honor killing it is nothing but barbaric and heinous murder.
Informal justice v. formal justice, is the thought engaging issue, as the first one is completely out of the government regulation and the later one is wholly governed by the state and because of which there are several mind blocks who does not wants to be dominated by the later, but the state in order to fulfill its obligations to its people to safeguard their rights, dominated and stonewall the acts of khap panchayats who are one of the informal justice providing body in India, the supreme court recently declared it illegal for khap panchayats to stall marriage between consenting adults, also said that ‘any assembly which is intended to scuttle a marriage of two consenting adults is also illegal’, the ruling came on a plea by NGO Shakti Vahini[5], which headed towards the apex court in 2010 seeking protection of couples from honor killings by such panchayats.
Political Structure of Khap Panchayat and state regulative system
The khap panchayats have federal system which is not so complicated, firstly the unit of seven villages was called a Thamba and twelve Thambas formed the Khap merger of 84 villages which formed a Khap Panchayat and secondly, Sarv-khap[6]panchayat which comprehend all Khap Panchayats falling under its preview.
The State regulative system or the Hon’ble court system in India also referred as the judicial system of India comprises of the Supreme court, High court, District court or subordinate courts which provides with the unbiased and unerring decision by formal way of abiding by the laws of country which is absent in the justice of khap panchayat.
1.Khap panchayat v. Judiciary System
The khap panchayat at village level has elderly people of particular dominant caste as heads,especially of Jat[7] community who are experienced and are regarded as the saviors of age-old traditions and customs, and these are not being elected democratically as that of in legal judicial system, these are the members with some customary eligibility and they have the influence and power to control this so-called informal judicial system. Whereas when we talk about judiciary system it has the due procedure for the appointment of the judges and there is no dominance of any particular caste, everyone is equally treated in the eyes of law, and the punishments for the offences are also given according to the laws prescribed thereof, this is not the case in khap panchayat they give harsh and humiliating punishments even for the small mistake being committed[8]; and the acts of going against the decision, societal traditions, cultures and norms are like putting the hands in honeycomb.
2.Sarv-Khap Panchayat v. judiciary system
Sarv-khap panchayat is the cumulative body of all the khap panchayats falling under its adjudication. It collectively acts as of a federal system, it handles matters of two or more khaps and also the matters which are appealed to the larger khaps by the victim, for the proper justice by which he is well satisfied, as similar is the case in the judicial system as the person moves to the higher court in hierarchy for he thinks that lower court has not done proper justice, so he has the free will to head towards the higher court of jurisdiction and also the higher courts have the power to overturn the decision of lower courts and provide with justice.
Usually the meeting of Sarv-khap panchayat takes place once in a five years[9]where as it can also be conducted before that if the matter is of utmost importance but not otherwise. And for this meeting, group of different khap panchayats mutually decides the venue for the meeting, the agenda, the accommodation, the food etc. and one of these khap can play as a host for meeting, these all things are so informal, and nothing in this matches with that of which the actual formal justice providing body acts like, they act according to their wish and will, and often end up providing false justice, and therefore people does not trust them when it comes to their own matter, they would definitely think of getting solved their dispute by the formal judiciary method and get the formal justice but here these khaps does not allow them to go somewhere else as they think they are the most appropriate justice provider and they can solve any matter of dispute by their own.
Khap Panchayats Opposing Constitutional Provisions
Originally the panchayats were functioning for the betterment of society with good political and social ideologies aiming to contribute to the nation but in contrary the beliefs of khap differs from that of law when it comes to the daughters of the family, the khap panchayat differentiates between their sons and daughters and regards daughter marriage as a burden on the society and thinks of getting rid of it in as less amount as possible and not only they are opposing Article 14 of the constitution which provides everyone equality before law but also these panchayats earlier told the court that they were encouraging inter-caste and inter-faith marriages and had referred to the provisions of the Hindu Marriage Act which prohibit a union between ‘sapinda’ [10] relationships or close blood relatives among Hindus. They said they were performing their duties as the conscience keepers of the society but the ultimate supreme court verdict proves that how far they have been successfully able to fulfill their duties as a panchayat by taking the law into their own hands with so-called Honor Killings the Supreme Court has strongly urged the Centre to protect couples from such actions. At the very time the Apex Court also addressed ‘Khaps’ they cannot become “self –appointed conscience keepers” when there is a law and there are courts to deal with marriages that maybe prohibited by law. The Supreme Court further said when two adults get married, it was for the law to declare it null and void and khaps cannot resort to violence against the couple.
HONOUR KILLING: A FEROCIOUS FELONY
When we talk about Informal Justice we understand that it is something which is not supported by the state by any means, and Honor Killing is such a vehement action used as a tool to provide justice by khap panchayats, which they think they are protecting their honor in the society but in reality they are just promoting barbaric, boorish and shameful murders of a women[11] or a girl by other family members for the reason maybe she has either lost her “sexual purity” or has engaged in sexually immoral activities, ranging from interacting with men who are having no relation with but having sex outside of marriage, or has denied for the arrange marriage, and it also includes victims of sexual assault and rape. The counting of such shameful murders is constantly reaching peaks especially in rural areas where khap prevails, this crime violates numerous constitutional provisions namely Article 14, 15(1) & (3), 19, 21 and 39(f)[12]. It also violates and announces punishments for honor killing in Indian Penal Code: -
Section 299,300,301,302,303,304,307,308,120A and B, 107 to 116, 34 and 35[13]
The crimes such as Honor killings is mostly the result of the egos of the panchayat that how could a girl from their community or society or adjudication be married to a man of inter-caste, inter-clan or inter-villages against their culture, the khaps does not consider even if the marriage is an arrange marriage with the consent of their parents what they think is that the boy has already born of the marriage, but in the eyes of law it’s no crime. In the cases of inter-caste, inter-clan and inter-village marriages, it has been observed that the khaps conducts the meeting of elderly members and passes the autocratic diktats to do shameful murder of the couple, oust their families from the territory of village and this order does not end here, it further imposes phenomenal fines on those people who would help them or talk with them anymore, in short it is the worst thing which can be done to the rights and wills of the people in this 21st century, although this crimes are widely suspected to be under reported, the United Nations Population Fund[14]estimates that as many as 5000 women are killed annually for reasons of honor, these crimes are not particularly in some countries but are throughout the world, however they are most profound in India and Pakistan.
PANORAMIC PRESCIENCE
Being an eminent part of the nation where efficacious energy prevails and noted amongst various unanimous judgments, the Hon’ble Supreme court just passed the judgement which supports the humanity and declares it illegal for the khap panchayat to interfere in the marriages of two consenting adults just for the sake of their good fame or to cater their ego as these activities are more of a crime and moreover you are not protecting your honor by killing anyone, in the name of honor killings you are doing barbaric crimes which not only opposes laws of the society but also harms the morality of the society, in my view these khaps are doing more of a defaming activities to the individuals for having a control over them by curbing their voices which raise in the rights of themselves , khaps wants to rule and have their dictatorship over them and show them that they are higher than them and whatever they decide is always bonafide for them which however contradicts the reality. The only way of stopping these barbaric and heinous crimes by khaps are by declaring them illegal to provide with informal justice as we already have our formal justice providing body so why to give powers to others who misuse them for doing such inhumane crimes.
References:
[1] Timesofindia.com| updated Mar 27, 2018
[2] KhapPanchayat.pdf| author Vineet Joshi, updated Sep,2015
[3] KhapPanchayat.pdf| author Vineet Joshi, updated Sep,2015
[4] Wikipedia, “honor killings” | July 16, 2015
[5] Timesofindia.com | Mar 27,2018
[6] Wikipedia, “khap”
[7] Ahlawat, Neerja| Dec1,2012: The Political Economy of Haryana’s Khaps (EPW)
[8] YouTube, “Satyamev Jayate Episodes of Honor Killing” | July 18,2015
[9] KhapPanchayat.pdf| author Vineet Joshi, updated Sep,2015
[10] Timesofindia.com| updated Mar 27, 2018
[11] Kchhawaha, Kavita|2011: Khap Adjudication in India- Honoring the culture with crimes (IJCJS, Vol 6)
[12] The Constitution of India,1950- Bare Act| LatestLaws.com
[13] The Indian Penal Code,1860- Bare Act| LatestLaws.com
[14] www.britannica.com| author Raghu N. Singh
