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Khap Panchayat - Ancient meet the New
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- India as a welfare state: A key function of a welfare state is to work for social upliftment and deliver justice. One of the functions of the State under the Directive Principles of State Policy is to separate the judiciary from the executive as given under Article 50 of the Constitution. Article 40 gives power to the panchayats to form self-governments. The 73rd Amendment of 1992 introduced Panchayats in Part IX and gave them the constitutional power to organize themselves into self-governments.
- The Panchayat story: A panchayat was a council of members or a body of religious people or caste members who exercised exclusive jurisdiction over the rural areas that existed even before the British rule. Their main function was to decide internal disputes in accordance with the prevalent customs, usage or traditions in the community. The people did not object when these customs were changed or modified for the purpose of internal administration (Baxi, 1976). For example, under the UP Panchayat Act of 1920, the principle function of the panchayat was to act as a petty court so that revenue could be collected by imposing fines as punishment (Galanter, 1989). Panchayats are mainly found at village level, gram level and district level.
- The Khaps: This is a system of administration peculiar to the Jat community of Haryana, Rajasthan and Uttar Pradesh. It is a concept of the patriarchal society and is based on principles of Bhaichara (brotherhood) and HukkaPaani (community living and eating together). Each individual carries the name of his/her village and gotra. Two people belonging to the same gotra or two people belonging to a different gotra but falling under the jurisdiction of the same Khap panchayat cannot get married. Such a marriage is considered incestuous.
- Why the exclusions: This is because members of the clan share the same patrilineal descent. The existence and role of the Khap panchayats was first recognised during the Mughal period in clearer terms. Emperor Akbar even granted freedom to the Khaps in matters of religion and internal administration. They were exempted from taxes and the Khaps were allowed to perform their internal functions with full freedom (Pradhan, 1966). They were formed because the sufferers of armed conflicts and wars settled together and organised themselves into clans. It provided them a sense of belongingness and identity.
- Concept of Nyaya Panchayats: These have the judicial power to deliver justice in villages falling under their jurisdiction. They mainly administer civil jurisdiction and are usually established for a group of seven- ten villages (Pradhan, 1966). The members are selected through the system of voting and they have to follow proper rules and regulations as prescribed under law.
- The Nyaya Panchayat Bill was passed in 2009 is still pending before the Parliament which clearly lays down the role, functions and powers of these panchayats.
- The 114th Law Commission Report exclusively discussed Nyaya panchayats and their positive role in India. They get greater support from the locals and lessen the burden on the judiciary. Similar to a Nyaya panchayat, a Khap panchayat governs a group of five or more villages and organise themselves into a council of members elected by voting. Their main work involves resolving civil disputes relating to marriage, property etc.
- Role of customs and its effect in Law: A custom is a practice prevalent in an area for a significantly long period of time. For such a custom to become a rule of law, it should be in practice continuously for a long duration, it should not be against public policy and it has to be reasonable. Such customary laws are more acceptable in the society than radical changes brought by law. Thus, in short, for a custom to become a codified law, it has to be established that it is ancient, reasonable, continuous and certain (Arpanjot, 2010). Khap panchayats are institutions following age old customs in some parts of the country over generations. However, their customs vary from society to society. What is followed in North India is different from Tappa in South India.
- Categories of Khap Panchayats: A Khap Panchayat can be broadly classified into four categories Sarv Khap Panchayat, Khap Panchayat, Tappa Panchayat. Tappa Panchayat is mainly found in parts of Tamil Nadu and the omnipresent village panchayat which is most commonly found. The Sarv Khap is the largest panchayat which solves disputes of Khaps within its jurisdiction. It is an amalgamation of many Khaps within neighbouring areas in a district which have been living collectively since ages. One major criticism of the Sarv Khap Panchayat is that the participation of women at the administrative level is negligible. The origin of Khap Panchayats can be traced back to the Vedic period. Originally, they provided a secured living for people of the same clan and worked for the social upliftment of the community. The panchayats were expected to ensure a high level of justice, fair play and efficiency, in the absence of which the panchayats could not command respect from the villagers. The leaders of Khaps passed resolutions for banning female foeticide, preventing the evil practice of dowry, abolition of sati, imposing a limit on the costs involved in marriages and restricting the number of people invited in a marriage so that the girls' family is not burdened with extra expenditure.
- Limits to power: The Khap panchayat is neither a binding authority nor do they have the knowledge of law to give verdicts on matters of honour killings. These honour killings are punishable in the court of law and tried in accordance with the provisions of law. Even the political parties work as a team with these panchayats. The main criticism of Khap panchayat is that rights of an individual are not respected. Rights of liberty, dignity, freedom to choose own life partner are jeopardised. Women are abused and their issues are never addressed. Most of the Khap rules seemingly are against law. Rule of men rather than rule of law prevails! Khap panchayat bans inter-gotra marriages which is highly debatable. According to the law, every person who has attained the age of 18 years incase of a female and 21 years in case of a male, has the right to marry out of their free will. Under the Hindu Marriage Act, 1955; only 'sapinda marriages' are prohibited and if they have a common lineal ascendant.
- Summary: These panchayats do not have the authority to enforce or declare the law under the Constitution yet it is a common practice. In reality, they only have the power to form self governments and uplift the rural areas and bring them at par in matters of opportunities, jobs, education and economic growth with the urban areas. Generally, the Khap leaders are senior citizens who lack flexibility in approach, but through education they can be made aware of the existing law and work in accordance with it. Participation of women should be encouraged at the core level and everyone should be given a fair hearing before deciding a matter.
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