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Khap Panchayats

• Customary Laws

To make any effort at understanding customary law, we must begin with looking at
what custom itself is in the first place. Custom is not a term that can be constrained
to one definition, though in common parlance it can be understood as uniformity of
conduct of people under like circumstances. It is a practice that by its common
adoption and long unvarying habit has come to have a force of law. A custom is a
usage by virtue of which a class of persons belonging to a defined section in a
locality is entitled to exercise specific rights against certain other persons or
property in the same locality. The concept of rules and regulations developed with
the evolution of a community into a society.

Most of these principles were derived from usage or practices of the community for
their subsistence. The long and continuous usage by the community of the natural
resources of their locality evolved into localized and varied customary practices. As
customs had their origins in the said usage and practices, the needs of the people
were kept in mind while evolving them. The needs of neighbouring villages were
also kept in mind before making any rules regarding the use of forest and forest
produce.

Legal Custom:

A legal custom is that custom which operates as a binding rule of law, independently
of any agreement on the part of those subject to it. In India, for a custom to have a
colour of a rule or law, it is necessary for the party claiming it to prove that such
custom is ancient, certain and reasonable; Customs being in derogation of law are to
be construed strictly. In Indian Jurisprudence, custom is an integral constituent of
law. However, there has always been a debate whether in reality customary law is
recognized as merely a source of law or does it actually form a constituent of Indian
Legal System.1

Difference between Statutory and Customary law

Statutory Law Customary Law

Form Written thus usually Rarely codified. It is an


codified Rarely codified. expression of positive
will of the people handed
over from one
generation to another

Nature Uniform Varies from community


1
http://www.genecampaign.org/Focus%20Area/PROJECT/GC_IK_BP2%20.pdf
to community and is
usually area specific

Extent and Extends to those parts of No uniformity and its


the country or the state extent and application
Application as mentioned in the law are restricted to a
smaller field (region or
community specific)

Acceptance Acceptance by the Acceptance from the


people is not all that community is of utmost
important. A handful of importance as it is their
people makes laws and acceptance that makes
makes it applicable. any customary law
Even if the affected binding on the
people do not willingly community
accept it still it has a
binding effect

Understanding Often too complicated Simple and lucid


for the common man to therefore indigenous
understand people have a better
understanding of these

Awareness Awareness of theses Awareness is high as it is


laws is usually low developed by those very
especially in remote and people and is specific to
underdeveloped areas the community or
due to the above locality
mentioned factor

Enforceability Any dispute regarding Any contravention of this


any violation of this law law is challenged in the
is brought before formal traditional courts.
courts or judicial Recognition is given to
authorities customary law in some
statutes but in case of a
conflict between the
two, the principle is that
any customary law is not
to be in derogation of
statutory law

Dispute Disputes are resolved Disputes are settled by


and decided by the consensus or majority in
Settlement judges of relevant courts the traditional courts or
gram

sabha

Penalty Uniform for all. Does not Less harsh as usually the
take into account the penalty is determined
capacity of the person. according to the
This results in inability to capacity of the offender
pay the fine at times thereby ensuring that
the fine/ penalty is paid

Advantages of customary law

The biggest advantage of a customary law is that it comes from the community and
is therefore simple and easy to understand. Moreover, it is friendlier to the locality
or community from where it has emerged. Hence, it receives better compliance from
the local people.

Customary law is less complicated. It is speedier and less expensive than formal
courts of law. Any dispute that takes years to resolve in a formal court of law is
resolved in comparatively much less time by traditional institutions. Most of the
indigenous communities have little exposure to modern systems of judicial redress.

As against this, people are well aware of their own customary laws; therefore it is
easy for them to approach their traditional institutions for the administration of
justice. Besides, cases are decided keeping in mind the needs of the society and the
victim and the capacity of the accused to withstand justice. A very fine example of
speedy and flexible redressal under customary law can be found in the Nishi case
from Arunachal Pradesh, India. The village headmen had constituted a volunteer
force to monitor any illegal activities in the community forest. The village volunteer
force cleared a 5-meter strip to demarcate forest area. A contractor from another
village had been warned earlier on account of his violation of rules. He sent his
labour force to harvest cane from this part of the unclassed state forest. The
volunteer committee beat up the labourers and seized their tools and cane.

Disadvantages of customary law

The biggest problem that customary law faces is that it is region specific and so
there exist multiple laws that might overlap. There may be a customary law in one
community, which could be different from that of another community in the same or
neighbouring locality. In such a case how is one to decide which law shall prevail?

It is not necessary that all customary laws be friendly to people and society or even
biodiversity.

Although they have an inbuilt system of checks and balances to preserve their rich
natural surroundings, there may also exist laws that may not be very practical or
advisable.

Since customary law is a law by the people, the very same people also decide the
disputes (most of the times). Although this may have its own advantages, there is
always the danger of partiality.

Customary law is largely oral and the lack of any documentation, especially
precedents, often proves to be a difficulty in deciding cases in a fair manner as per
the customs.

With the concept of individual right as against the community right seeping in with
the times, people have stopped relying on customary law. Education has also played
a role in this development. With education, people have learned that customary law
has little recognition in the legal system. This by no means implies that education is
bad. But it is of note that there is not enough awareness amongst the youth about
the value of their own customary laws nor are sufficient efforts being made at their
revival.

Introduction and Historical back ground of Khap

In early times man was living a nomadic life which with time was furnished into a
settled agricultural community. It was then, the villages were formed and man
started his journey towards civilization. Villages are the root of Indian heritage.
There are thousands of tribes and villages in India today. There are various practices
and cultures in these villages of delivering justice. At times there is a council of five
elderly persons of the village to deliver justice and it is called the panchayat. The
forms of governing society are that of the `Sabha’(Hindi: सभा) or `samiti’ (Hindi: सिमित)
i.e. gathering/assembly. The Sabhapati, the president of the Sabha was elected.

Khap is a term for a social - political grouping and used in a geographical sense. For
some reasons the political unit of Khap was defined as a group of 84 villages. The
khap and the sarv khap is defined as a system of social administration and
orgainsation in the northwestern Indian States such as Haryana, Rajasthan and Uttar
Pradesh since ancient times.

The Sarv Khap (or all Khap) Panchayat (council) represented all the Khaps. The
individual Khaps would elect leaders who would send delegates, who would
represent the Khaps at the Sarv Khap level. It was a political organization, composed
of all the clans, communities, and castes in the region.

A number of villages grouped themselves into a Gohand (corresponding to the


present Thana area); a number of Gohands formed a ‘Khap’ (covering an area equal
to from a Tehsil to a District and a number of Khaps formed a 'Sarva Khap'
embracing a full province or state. For example, there was a “Sarva Khap” each for
Haryana and Malwa. At what level a Panchayat should gather depended upon the
magnitude of the problem and the territory it involved.

The right of attendance and expression was open to every one, whatever the level
of the Panchayat. Generally, however, selected - representatives of the villages
attended Panchayats of the 'Gohand' and higher level. Leaders were elected and
appointed at 'Khap' and 'Sarva Khap' level that maintained records of decisions and
had the authority to call an assembly.

Khap is a cluster of villages united by caste and geography. It is as old as 14th


century started by upper caste jats to consolidate their power and position. The
main rule is that all boys and girls within a khap are considered siblings.

Khap panchayat governs the khap formed by same gotra ( clan) families from
several neighbouring villages. Khap panchayats are prevalent in
Haryana,western Uttar Pradesh and Parts of Rajasthan. Love marriages are
considered taboo in areas governed by Khap panchayats.Those living in a Khap
are not allowed to marry in the same gotra or even in any gotra from the same
village. Many young couples have been killed in the past defying khap rules.2

Khap Panchayat in India

Khap panchayat imposes its writ through social boycotts and fines and in most
cases end up either killing or forcing the victims to commit suicide. All this is
done in the name of brotherhood and its honour. It is due to the inherent
weakness of democratically elected Panchayati Raj institutions,Khap panchayats
have been powerful. Even the government has not done much to control their
power.

The 10-15 men who constitute a Khap settle disputes and control the lives of
young people. Many village people also defend these caste panchayats as they
deliver the verdict in one sitting whereas court cases drag for years. According
to them ,in many cases innocent people get harassed in the court and by police.
Here as everyone is known so they cross check everything to ensure neutrality.
2
http://www.azadindia.org/social-issues/khap-panchayat-in-india.html
In some Haryana villages, the young girls are routinely threatened, abused and
killed all under Khap verdicts. It is acceptable for the families to feed pesticide
pills to the teenage girls and then dispose off their bodies by burning them
without any police records. The entire onus of siblinghood rests on the girl. She
is the keeper of village honor. Sometimes rules are bend for the boys but a girl
is never allowed to bend the rules. If a couple run away then the families risk
the boycott and hefty fines in lakhs of rupees. Even the other women of the
house can suffer abuse.

In keeping with the khap rules ,older villages try to keep the young people
apart.Some schools are also forced to have separate timings for the boys and
girls.Fearing their daughters would go astray,many parents marry them off at an
early age.People have unquestionable faith in the justice of khap.The question
of rights for women does not exist any where in the territories ruled by Khap
panchayats.3

Khap panchayats a curse on Indian culture

Khap Panchayat is against the constitution which is the supreme law of the
land. Justice cannot be delivered by a handful of uneducated people. All the
evils of our culture or traditions should be brought to an end. Killing a person
because he married a girl of his choice is no way of delivering justice. It’s
inhuman and as well as against the fundamental rights of a person. If every
such culture starts practicing its own way of delivering justice then it is going
to be a total chaos in the society. Then, there stands no point of civilizing and
organizing the society for the betterment of human development. There are a
no. of cases which shows the hard core reality of khap. Such as

1. Female feticide

The female feticide rate is the highest in the north India. In States of
Haryana and Punjab the cases of female feticide are recorded the
maximum. The sex ratio in these regions are recorded
722(females)/1000(males). The girl child is treated as a liability
compared to male child who is taken as an asset of the family. It’s
almost a sin in these regions to give birth to a girl child. Girl child are
killed the moment they are born.

2. Honour killing

At least half the time, the killing are carried out with barbaric ferocity.
The female victim is often raped, burned alive, stoned or beated to
death, cut at the throat, decapitated, stabbed numerous times,
suffocated slowly, etc. the murderer(s) do not show remorse. Instead,
they experience themselves from the girl’s actions trying to restore
their lost family honor. Many such killings are happening with regularity

3
http://www.azadindia.org/social-issues/khap-panchayat-in-india.html
in Punjab, Haryana and western Uttar Pradesh. Muslims, Sikhs, and
Hindus view honor and morality as a collective family matters.4

3. Forced marriage

A forced marriage is a marriage that is performed under duress and


without the full and informed consent or free will of both parties. Being
under duress includes feeling both physical and emotional pressure.
Some victims of forced marriage are tricked into going to another
country by their families. Victims fall prey to forced marriage through
deception, abduction, coercion, fear, and inducements. A forced
marriage may be between children, a child and an adult, or between
adults. Forced marriages are not limited to women and girls, as boys
and men are also forced to marry against their will. A forced marriage
is considered to be domestic violence. Victims of forced marriages
often experience physical violence, rape, abduction, torture, false
imprisonment and enslavement, sexual abuse, mental and emotional
abuse, and at times, murder.

News paper Articles

Till Khap Panchayats do them part

There are more than 500 policemen protecting a dozen members of the Gehlawat
family in Dhrana village of Jhajjar district. They are being shielded against their own
neighbours, who have asked them to leave the village, as their son Ravinder has
‘dared’ to marry a girl of his own gotra. Despite the presence of a huge police
contingent and regular assurances from the district administration, the family is
jittery. Ask them about their discomfort and they give the example of Ved Pal (23)
who was lynched a week back in a village in Jind district for allegedly committing the
‘same crime’. Pal had come to take his wife back, armed with a High Court order.
The court had also sent a Warrant Officer with him. But even the presence of police
could not prevent his death.

These are two of the recent instances of ‘justice’ delivered by the notorious Khap
Panchayats in Haryana. A Jat social structure of medieval times, the Khap is a
collective panchayat of several villages or castes. Each Khap is governed by a sect
of brotherhood, which means that conjugal relations between a set of gotras within
that particular Khap are barred. Ravinder had invoked his Khap’s ire by marrying a
girl who belonged to Kadiyan gotra. The norms of Kadiyan Khap of the 12 villages
(which included Ravinder’s) deemed Kadyian and Gehlawat to be from the same
family and for them, Ravinder and his bride were brother and sister.5

4
http://ibnlive.in.com/cfs/blog/53796/1541
5
http://www.indianexpress.com/news/till-khap-panchayats-do-them-part/495297/