Rough Draft Devraj Singh 49 Law & Morality

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    Dr Ram Manohar Lohiya NationalLaw University Lucknow

    Khap Panchayats: A case of morality Takingthe Law into its own hands?

    Submitted To:

    Submitted By:

    Mrs. Mrinalini Devraj Singh

    Law and Morality B.A LL.B Hons.) IXth Semester

    Seminar Paper Section - A

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    Roll No: 49

    IntroductionIt is evident that both law and morality serve to channel our behavior. Law accomplishes this

    primarily through the threat of sanctions if we disobey legal rules. Morality too involves

    incentives: had acts may result in guilt and disapprobation, and good acts may result in

    virtuous feelings and praise.

    Law means the body of rules that we term legal, that is, the rules that are determined and

    enforced by the state and that are intended to channel behavior and to resolve certain adverseevents. Thus, a legal rule might forbid littering in the park and impose a $50 fine for a

    violation, might impose expectation damages for breach of contract or might declare murder

    a crime and punish it with a sentence of at least ten years of imprisonment.

    Morality refers to rules of conduct that are associated with certain distinctive psychological

    and social attributes. In particular, a moral rule has the property that when a person obeys the

    rule, he will tend to feel the sentiment known as virtue and if he disobeys the rule, he will

    tend to feel the sentiment known as guilt. A moral rule also has the property that when a person obeys the rule and is observed to have done so by another party, that party may

    bestow praise on the first party who will enjoy the praise: and if the person disobeys the rule

    and is observed to have done so by another party, the second party will tend to disapprove of

    the first party, who will dislike the disapproval.

    The Panchayati Raj System was introduced in India with the aim of decentralization and

    democratization. However, Khap or caste panchayats wield much more power than these

    statutory panchayats in states like Haryana and order harsh punitive measures against couples

    who marry within the gotra . Even powerful politicians do not dare invoke the law against

    them. These self proclaimed courts of caste lords in a village enjoy full legitimacy and

    authority among the sections of their caste as the The Custodians of Honour. These earlier

    days credible bodies have now turned political. It is through them that the most regressive

    social views are sought to be implemented. 1

    1 1. Article by Kavita, Kachhwaha Khap Adjudication in India: Honoring the Culture with Crime accessed last accessed 25th August, 2013

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    Pursuant to the discussion in the Parliament on a Calling Attention Motion and the assurance

    given by the then Union Home Minister that various aspects relating to honour killings will

    be examined, a reference was made to the Law Commission of India by the Ministry of Law

    and Justice in September 2009.

    In India honour killings are mostly reported from the States of Haryana, Punjab, Rajasthan

    and U.P. Bhagalpur in Bihar is also one of the known places for honour killings . Even

    some incidents are reported from Delhi and Tamil Nadu.

    Sections of Indian society and the media have for some time been demanding that these

    panchayats, modern-day avatars of traditional social assemblies in rural north-western India

    that were primarily engaged in resolving disputes and ensuring adherence to custom, be

    restrained.

    Characteristically, the government has chosen to treat the issue as a law and order problem,

    rather than seeking to understand how and why khaps and their decision-making powers

    came into being and have continued to persist, which would have made handling the issue in

    a more prudent manner possible. The untrammelled power that the khap panchayats wield

    without any legal basis to it, the obstructionist and dogmatic attitude of people at large in

    villages, the shocking inaction of the police, the reluctance of the state government to catch

    the proverbial bull by the horns shows that India still has a long way to go to solve the problem. 2

    Thus, we see that these khaps have a long standing history with the people whose lives they

    try to regulate. We also see that the problem of honour crimes is not endemic to our country

    and occurs over the world but mostly in migrant communities in developed countries. As

    such the difference can be attributed to the mindset and awareness of the people of our

    country and as such work is needed on the above two aspects. The definition of what is

    morally right and wrong for people needs to be changed. Apart from legislation to effectivelycurb honour related crimes, it is equally important that the steps should be taken to organize

    counseling programmes for the village communities, for instance to explain to them that

    sagotra marriages are not opposed to law, religion sadachar or medical science.

    2 Khaps Call the Shots, Tough Steps Needed to Stop Honour Killings, The Tribune , 13 August 2009

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    Statement of Problem

    The rising incidence of commission of murders of persons marrying outside their caste or

    religion and other serious offences perpetrated or hostility generated against them and also

    causing harm to their close relatives or a section of the community on considerations of caste

    and 'gotra are matters of grave concern. The reason for these crimes is that the people

    committing these crimes choose to uphold their morals over the law. Those who may be

    directly involved in the actual commission of acts of violence or murder are either part of a

    community or section of the people and may also include members of the family concerned

    in the case of objected marriages. Very often such incidents and offences are not even taken

    cognizance at the threshold.

    The interven tion 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. These bodies consider

    themselves to be the upholders of the morality of the society and as such act as moral

    police doling out punishments according to their own sense of what is morally right and

    what is morally wrong. Such assemblies gathered on caste/community 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 ofadministration of justice. The Indian penal law (IPC) lacks direct application to the illegal

    acts of such caste assemblies.

    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.

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    The Hindu Marriage Act does not prohibit sagotra or inter-caste 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 morality. There are reports that drastic action including wrongful

    confinement, persistent harassment, mental torture, infliction of or threats 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 Panchayatdar s. Several instances of

    murder of one or the other couple have been in the news. Social boycotts and other illegal

    sanctions affecting the young couple, the families and even a section of local inhabitants are

    quite often resorted to. All this is done in the name of tradition and honour. Numerous cases

    have come up in the recent times. For illustration:

    Self proclaimed Judges put oil in a pot and boil it. A coin is placed into it. The accused is

    asked to take out the coin from the boiling oil. He/she is considered innocent if managed to

    do so. This is Dheej custom 3.

    An iron stick is heated red hot. The palms of the accused are smeared with turmeric and

    seven leaves of Peepal are tied on them by a weak thread. The red hot stick is kept on it and

    the accused is asked to walk seven steps carrying the stick in his hands. If the palms do not

    burn he/she is presumed innocent. 4

    The guilt of a woman is judged by forcing her to fry Puris bare handed in the boiling oil in

    the cauldron. If her hands burn, she is declared guilty. 5

    Many a times, barbaric ways are adopted. Either ear or nose of the accused is chopped off.

    Sometimes his hair is cut, face is polished black and he is made to ride over donkey in the

    whole village or is forced to run naked and bare footed6

    .

    HYPOTHESIS

    3 Kanuni daanvpencho ke dar se kayam aadivasi adaalate. (1999, January 15). Dainik Bhaskar, Jodhpur Edition4

    Kalyug mei di sita ne agni pariksha. (2002, July 8). Dainik Bhaskar, Jodhpur Edition5 Ve har saal deti hai agni pariksha. (2002, October 17). Dainik Bhaskar, Jodhpur Edition6 Jati pancho se aatankit vyakti ki sp se guhar. (2000, May 24). Dainik Bhaskar, Jodhpur Edition

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    The khap panchayats and honour crimes are the result of the people choosing to allow

    themselves to be guided by rules of morality in complete ignorance to the rules established by

    law.

    Scope of Research

    My paper would focus with the problem of Crimes of Honour perpetrated by Khap

    Panchayats in India. It will then try to examine the problem for the view of the morality-lawdivide. Finally the paper will deal with how to solve this divide and stop this problem for

    good. For this purpose I will be referring to articles, the Supreme Court s verdict on various

    occasions and Justice Verma committee report on the issue.

    Literature Review

    From the article Law versus Morality as Regulators of Conduct7 one is able to discern as

    pointed out by the author that both law and morality serve to channel our behavior. Law

    accomplishes this primarily through the threat of sanctions if we disobey legal rules. Morality

    too achieves this objective but it acts through incentives. Bad acts may result in guilt and

    disapprobation, and good acts may result in virtuous feelings and praise. This may be external

    i.e. an individual may be commended or shunned by the society for his moral and immoral

    acts respectively. Similarly he may feel proud or guilty by himself for his moral or immoral

    acts. In case of Khap panchayats it is the society which is shunning the concerned individualsfor not confirming to morality.

    From the meetings of the Journal of the Royal Society of Arts 8, I have been able to discern

    the History of the Panchayat system in India and deduce their functioning at various times in

    history.

    7

    Steven Shavell, Law versus Morality as Regulators of Conduct American Law and Economnics Review V4 N2 2002 (227.257)8 Journal of the Royal Society of Arts, Vol. 85, No. 4399 (MARCH 12th, 1937), pp. 385-401

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    In the Vedas the village is portrayed as a semi- independent republic governing itself through

    a Sabha or assembly. 9

    The effect of Muhamedan rule, especially where it was well organised, was to enfeeble the

    village communities and arrest their development, and the process was hastened by the

    oppressive character of the revenue system during its later stages and by the disturbed times

    which preceded the advent of the British, so that when British rule began in Northern India

    there was very little trace of village councils or even of village headmen.

    The panchayat was retained for the decision of disputes between persons of one caste or of

    one trade, being convened by the mukhiya in the one case and the chaudhri in the other, and

    that in villages which belonged wholly or chiefly to one caste the panchayat had considerable

    influence over village affairs in general . The Settlement Officer of Muttra wrote in 1879

    that " the panchayat exists in the Jat bhaiyachara villages in great perfection," and

    Darling, in his Wisdom and Waste in the Panjabi cites a number of recent examples of

    non-official panchayats , not composed entirely of the dominant class of the village but

    representative of all the inhabitants, raising money for various purposes - the purchase

    of a share in the village, the deepening of a tank, the building of a chaupal, the paving of

    the lanes and even their maintenance in a sanitary condition.

    In the Mahratta and Rajput States of Central and Western India village communities

    were much stronger. Here the village headman had considerable authority, and when a

    dispute or complaint was brought to the notice of a government official or of the

    headman himself, the usual procedure was to refer it to a panchayat, the decisions of

    which were duly enforced by the local officials.

    In 18 16 Sir Thomas Monro, who had been sent out to Madras by the Directors of the East

    India Company with instructions for the reform of the judicial system, induced thegovernment to make panchayats an integral portion thereof, but in a memorandum of 1824,

    when Governor of Madras, he records that there was so much feeling against the

    panchayat both at home and in India, on the ground that it might become an

    instrument of abuse, that it was placed under such restrictions as to deprive it of all utility ;

    and he recorded the view that neither party should have the option of declining its juris-

    diction. He also recommended that criminal cases should be tried with the aid of a jury or

    9 Journal of the Royal Society of Arts, Vol. 91, No. 4631 (JANUARY 22nd, 1943), pp.94-108

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    Panchayats. Sir John Malcolm, in his memorandum on Central India, written in 1832, gave a

    detailed description of the working of Panchayats both in the Rajput and Mahratta States, and

    recommended that both criminal and civil cases of minor importance should be tried by

    Panchayats.

    Thus, from this I have concluded that Khap Panchayats wield so much authority because e of

    their long standing in the lives of the Indian people.

    These Panchayats did not lose their significance both under the Mughals or the English and

    as such have became rooted in the lives of the people and their lives intertwined with these

    informal Panchayats even more than those provided for constitutionally. Also that even in

    those days there was fear that these Panchayats may become an instruments of abuse and assuch their development was restricted. These fears are now only being realized and now that

    we have allowed them to grow unhindered.

    From the article Khap Panchayats: A Socio-Historical Overview 10 the reasons behind this

    interference by these caste Panchayats become clear:

    The expectation that customary conjugal rules and regulations will be upheld is common to

    all castes and communities in India. Women who produced legitimate heirs were essential tocaste and gotra-based societies and restrictions were imposed on them to control their

    sexuality and reproduction. To maintain familial rights over property, keep property within a

    particular caste, and reproduce the production relations that had been established on the basis

    of the caste system, rules and customs related to marriage were not only promulgated, but

    also strictly enforced. Those who violated them were punished by Biradari Panchayats

    (informal caste councils) that had members of only one caste or Khap Panchayats, which

    were usually better organised and more powerful.

    In the Jat community, inter-caste marriages were, and still are, not permitted and the degree

    of punishment varies for those who do so. For, marriages of Jat women to lower-caste men

    would elevate the social status of the lower caste, coming in the way of continuing caste-

    based exploitation in agrarian relations. This concern is reflected in the Jat saying Yeh dhed

    mahre jamai ban jiyange. Mhari gelya khat pe bethiya karenge (These dalits will become our

    10 Ajay Kumar, Khap Panchayats: A Socio- Historical Overview, Economic & Political Weekly, January 28,2012 VOL XLVII NO 4

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    But we see that despite orders of the courts, the State Government sand police have often

    feigned their inability to take actions against these panchayats because of the support of

    various politicians and governments to them.

    At the local level, where the tragic stories of opposition to romantic love take legal form, we

    find state officers such as the Inspector-General of Police, Rohtak, Haryana emphasising that

    'caste played an important role in village life'. He did not think 'that the state had any business

    meddling in their [caste panchayats'] activities, for democracy "essentially means minimal

    state intervention"'. 12

    There is no specific law in India dealing with this horrific and frightening act of honour

    killing and any punishment regarding the same. The law treats honour killing as homicide

    and murder under the provision of Indian penal code 1860. The honour crime also violates

    article 14, 15(1) and 15(3), 19, 21 and 39(f) of Constitution of India . It is against various

    international commitments of India. It is against the spirit of the UDHR and ICCPR .

    Shamefully, even today there is no legal definition of honour crimes in India. In India Penal

    code penalties for such crime find ground in section 299-304, 307, 30 ,120A and ,B ,107-

    106, 34 and 35. However a huge number of people get away with murder, torture and

    violation of laws and they continue to commit them without impurity. Strangely, the National

    Cri me Record Bu r eau does not collect separate data on honour killing .

    The PROHIBITION OF INTERFERENCE WITH THE FREEDOM OF MATRIMONIAL

    ALLIANCES BILL intends to append a new clause to Section 300 of the IPC. It also intends

    to amend the Indian Evidence Act and the Special Marriages Act, 1954, which would

    eliminate the provision for the mandatory 30day notice period for marriages, intended to be

    solemnized under the Act. The new bill is also expected to introduce a definition of honour

    killing for treating it punishable offence.

    Thus, we see that these K hap panchayats which dole out their system of Honour Justice are

    long time cherished institutions which have now turned nefarious as a result of the need of

    the few influential to maintain their influence over the rest not so privileged. This problem is

    not restricted to India but has assumed global proportions because of the misplaced sense of

    honour amongst the migrant communities abroad. In India they continue to flourish under

    12

    U Chakravarti, 'From fathers to husbands: of love, death and marriage in north India', in L Welchman & SHossain (eds), 'Honour'. Crimes, Paradigms and Violence against Women, London: Zed Books, 2005, pp 308-331

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    political patronage and because the police and other authorities refuse to intervene in the

    name of maintenance of social harmony and order and as such a mere amendment to Section

    300 IPC would not be an effective solution to the problem as it would only entail cases

    involving murder under its ambit whereas the majority of cases would go unpunished.

    The need is of a comprehensive law to be framed to cover all instances of such honour crimes

    and for it to be implemented with an iron hand to end this menace once and for all.

    Limitations of ResearchThe limitations of this paper are that I would not dwell in detail on the situation in other

    countries and provide a comparison. I will try and restrict/limit the scope as far as practicable

    to the Indian context and problem.

    Tentative ConclusionThe autonomy of every person in matters concerning one is principle of paramount

    importance. A free and willing creator of one's own choices and decisions is now central to

    all thinking on community order and organization. Needless to emphasize that such

    autonomy with its manifold dimensions is a constitutionally protected value and is central to

    an open society and civilized order.

    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 Government's Bill (as published in the newspapers). Probably, the

    addition of such clause may create avoidable confusion and interpretational difficulties.

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    In order to keep a check on the high-handed and unwarranted interference by the caste

    assemblies or panchayats with sagotra, inter-caste or inter-religious marriages, which are

    otherwise lawful, this legislation has been proposed so as to prevent the acts endangering the

    liberty of the couple married or intending to marry and their family members. It is considered

    necessary that there should be a threshold bar against the congregation or assembly for the

    purpose of disapproving such marriage / intended marriage and the conduct of the young

    couple. The members gathering for such a purpose i.e., for condemning the marriage with a

    view to take necessary consequential action, are to be treated as members of unlawful

    assembly for which a mandatory minimum punishment has been prescribed.

    Tentative Bibliography

    Khaps Call the Shots, Tough Steps Needed to Stop Honour Killings, The Tribune ,

    13 August 2009 Prem Chowdhry , Enforcing Cultural Codes Gender and Violence in Northern India ,

    Economic and Political Weekly May 10, 1997

    Pratiksha Baxi, Shirin M. Rai and Shaheen Sardar Ali, 'Crimes of Honour' in Indiaand Pakistan , Third World Quarterly, Vol. 27, No. 7, The Politics of Rights:

    Dilemmas for Feminist Praxis (2006), pp. 1239-1253 A jay Kumar, Khap Panchayats: A Socio -Historical Overview, Economic &

    Political Weekly January 28, 2012 VOL XLVII NO 4 Journal of the Royal Society of Arts, Vol. 91, No. 4631 (JANUARY 22nd, 1943),

    pp.94-108 Journal of the Royal Society of Arts, Vol. 85, No. 4399 (MARCH 12th, 1937), pp.

    385-401 Kavita, Kachhwaha Khap Adjudication in India: Honoring the Culture with Crime

    accessed last accessed

    25th August, 2013

    Justice Verma Committee Report, Report of the Committee on Amendments to

    Criminal Law Law commission of India, Report no. 242

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    Bhupendra Yadav, Khap Panchayats: Stealing Freedom?, Economic & Political

    Weekly DECEMBER 26, 2009 VOL XLIV NO 52