The system of khap panchayats running parallel courts in the garb of meting out justice and handing down punishments does not belong to this era.
The recent spate of “honour” killings based on diktats issued by kangaroo courts has brought to the fore one of the paradoxes of civil society in India. Is it not amazing that even in the 21st century, rampant lawlessness, even murder, is being permitted as a helpless citizenry and a weak state remain mute spectators to the goings-on?
Industrialist-MP Naveen Jindal's rating in the popularity charts seems to have gone up because of the support he promised to the practice. Though initially he seemed to have come out with wholehearted support for it, subsequently he moderated his stand by saying that it was his duty to take the issues of his constituents to the government and it was for the government to take a stand on them. It is another matter that his statement was modified from blatant support to acting as a mediator. What about this parliamentarian's duty to address the evils of society?
The Hindu Marriage Act, 1956 was enacted decades ago. The only prohibited marriages under the Act are those between sapindas. Two persons are said to be sapindas to each other if one is a lineal ascendant of the other within the sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference of each of them. There is no prohibition of inter-caste marriages and what is being sought to be done today is prohibition of same-gothra marriages. In Lata Singh (2006), Justice Markandey Katju of the Supreme Court condemned violence targeted at inter-caste marriages and held that the aggressors should be punished.
Are we talking about a modern India where we have been fighting to abolish age-old caste practices? Are we talking of a dynamic and integrated India where there is a high level of mobility, inter-mingling, and inter-mixing of religions and castes?
Khap is a term for a social, political grouping; it is used in a geographical sense. A khap comprises village elders grouped along caste or community lines and motivated by the need to perpetuate a feudal and patriarchal order. Khaps enjoy hegemony over 84 villages. They are powerful enough to issue fatwas ostracising families, and declaring marriages void without due legal process or the sanction of law.
History tells us that khaps are as old as the 14th century, started by upper caste Jats to consolidate their power and position. Khap panchayats are prevalent in Haryana, western Uttar Pradesh and parts of Rajasthan. Persons living in a khap are not allowed to marry in the same gothra or even in any gothra from the same village. If one of them lives in another village yet is of the same sub-caste, they are prohibited from marrying each other. The khap panchayats do not have any legal sanction. However, they being powerful, the government has in the past failed to invalidate their rulings and actions.
There are many instances of khap panchayats running their own parallel courts in the garb of meting out justice. Here are two instances:
•Ved Pal, a medical practitioner, ran a clinic near the home of Sonia. Love blossomed between the two against the wishes of the family members. The family members of the bride chose another groom, but the two married in court. The couple belonged to different gothras. However, Ved Pal made the mistake of marrying the woman of an adjoining village against the wishes of the khap. The khap, at a meeting, announced that the two were siblings and sentenced them to death. In spite of an order of the High Court granting protection to Ved Pal, he lost his life. Worse, the woman deposed against her husband, stating that Ved Pal made her elope and get married.
•In Kaithal, a death sentence was given by panchayats in the ‘honour' killing case of Manoj and Babli. They were of the same gothra and married against the wishes of the caste panchayats. The court gave the death penalty to five persons and a life-term to a village strongman. Subsequent to this, the members of the khap panchayat have remained defiant and strong in support of those who have been given the death sentence.
Khap panchayats delivering retributive justice is undoubtedly a barbaric practice; the system should be abolished. In a democracy everyone has a right to raise their voice, but everyone cannot hand out so-called justice. That is antithetical to the rule of law.
A Bombay High Court ruling in Madhavrao vs. Raghavendrarao (1945) held that same-gothra marriages were legal. It held that the definition of gothra as descending from eight sages and then branching out to several families was hardly a coherent one. The court held that it was impossible to accept the suggestion that in reference to today's Brahmin families, their gothras and pravaras represent anything like an unbroken line of descent from the common ancestors as indicated by the names of their respective gothras and pravaras.
When a society evolves, even age-old customs that are found to be in conflict with notions of civil society have to give way. This happened with respect to malpractices such as sati and even child marriages. Matters came to a head following Roop Kanwar's act of sati in 1987. It forced changes in society and changes in law to ban sati, despite opposition from a procession of believers. A similar controversy has arisen over child marriages and malpractices being permitted in various parts of the country.
It is good to have a conflict. When conflict reaches a peak, there is some disturbance but a new balance is arrived and a new and higher order achieved. The current conflict will force a resolution. All sections of society will be forced to address these issues, whether they are ordinary people, politicians, the State or the Centre. Murder is murder, by whatever name it is called.
(Pinky Anand is a Senior Advocate in Supreme Court of India.)