LEGAL RESEARCH METHODOLOGY

KHAP PANCHAYAT
(TRADITION v. MODERNITY)

Submitted by: [Link]

Class: I LLB (HONS)

Register No: 7448

Submitted to: Swathi Ram Mam

 INDEX

 HYOTHESIS
 RESEARCH QUESTION
 INTRODUCTION
 CATEGORIES OF KHAP PANCHAYAT
 CONCEPT OF NYAYA PANCHAYAT
 ROLE OF CUSTOMS AND ITS EFFECTS IN LAW
 TRADITIONAL APPROACH
 MODERN APPROACH
 LAW OF HONOR KILLING
 CONCLUSION
HYOTHESIS:

1. Researcher assumes that the khap panchayat has its own rules and regulation which
can uplift their rural areas.
2. Researcher presume that khap panchayat plays a major role in rising their caste and
customs.
3. Researcher perceive that the fundamental rights of individual and safety of women
were not addressed.

REASEARCH QUESTION:

1. What was and what is the stature of women and their safety in Traditional and
Modern approach of Khap Panchayat?
2. How far both men and women were allowed to have their Fundamental Rights?
3. What extent should the government adhere to demands of Khap panchayats?
INTRODUCTION

The most important function of the welfare state is to work for social elevation and to do
justice. One of the functions of the state, in accordance with state policy principles, is to
separate the judiciary from the executive, as provided for in Article 50 of the Constitution.
Article 40 gives the power of panchayats to form self-government. The 73rd Amendment of
1992 introduced the Panchayats in Part IX and gave them the constitutional power to
organize themselves. In other words, a panchayat was a council of members or a body of
religious or caste members who exercised exclusive jurisdiction over rural areas that existed
even before British rule. Its main function was to settle internal disputes in accordance with
the prevailing customs, customs or traditions of the community. The population did not
object, as these customs were altered or altered for internal administration purposes (Baxi,
1976).
Under the UP Panchayat Act of 1920, panchayat's primary function was to act as a small
court so that revenue could be collected by imposing fines as punishment (Galanter, 1989).
Panchayats are mainly found at village, grass and district level.

In this article, the researcher sheds light on the evolution, powers, functions and critiques of
the Khap panchayats. Khap is a management system peculiar to the Jat community in
Haryana, Rajasthan and Uttar Pradesh. It is a concept of patriarchal society and is based on
the principles of Bhaichara (fraternity) and HukkaPaani (community living and eating
together). Each person carries the name of their village and gotra. Two persons belonging to
the same droplet or two persons belonging to another droplet, but falling under the same
jurisdiction as Khap panchayat, cannot marry. Such a marriage is considered incestuous. This
is because clan members share the same patrilineal lineage.

The existence and role of Khap panchayat were first recognized in the Mughal period in
clearer terms. Emperor Akbar even granted Khaps freedom in matters of religion and internal
administration. They were exempt from tax and Khaps was allowed to perform his internal
duties in complete freedom (Pradhan, 1966). They were formed because those who suffered
from armed conflict and war settled and organized themselves into clans. It gave them a sense
of belonging and identity.
Categories of Khap Panchayat:

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. Women are not allowed to be
representatives even when crimes are committed against women. They are considered inferior
to men, next only to untouchables and scheduled castes in traditional Khap panchayats
(Sangwan, 2011).

Concept of Nyaya Panchayats:

Nyaya Panchayats have the legal power to provide justice in the villages under their
jurisdiction. They mainly administer civil jurisdiction and are usually raised for a group of
seven to ten villages (Pradhan, 1966). Members are elected through the voting system and
must follow appropriate rules and regulations as prescribed by law. The Nyaya Panchayat
Bill, passed in 2009, is still pending in Parliament, which clearly defines the role, functions
and powers of these panchayats.

The 114th Report of the Law Commission exclusively discussed Nyaya panchayats and her
positive role in India. They receive more support from the local population and reduce the
burden on the judiciary. Like a Nyaya panchayat, a Khap panchayat governs a group of five
or more villages and organizes itself into a council of members elected by vote. His most
important work involves resolving civil disputes over marriage, property, etc.

Role of customs and its effects in law:

"Justice has emanated from nature. Therefore, certain matters have passed into custom
by reason of their utility. Finally the fear of law, even religion, gives sanction to those
rules which have both emanated from nature and have been approved by
custom" (Krishnan, 2000).
A custom is a prevalent practice in an area for a significantly long period. For such a practice
to become a rule of law, it must remain in practice continuously for a long period of time,
must not be contrary to public policy and must be reasonable. Such customary laws are more
acceptable in society than radical changes brought about by law. In short, for a user to
become a codified law, one must find that it is old, reasonable, continuous, and secure
(Arpanjot, 2010).

Khap panchayats are institutions that follow ancient customs in some parts of the country
through generations. However, their customs vary from community to community. What is
being followed in northern India differs from Tappa in southern India.A Khap Panchayat can
be broadly classified into four categories: Sarv Khap Panchayat, Khap Panchayat, Tappa
Panchayat.

Tappa panchayat is found mostly in parts of Tamil Nadu and the ubiquitous panchayat village
that is most commonly found. Sarv Khap is the largest panchayat who settles Khaps disputes
within its jurisdiction. It is an amalgam of many Khaps in nearby areas of a district that have
lived collectively since ages.

A major criticism of Sarv Khap Panchayat is that women's participation at the administrative
level is negligible. Women cannot be representatives, even when crimes are committed
against women. They are considered inferior to men after only untouchable and programmed
castes in the traditional Khap panchayats.

Traditional Approach:
The origins of the Khap Panchayats can be traced back to the Vedic period. Initially, they
provided a safe haven for people of the same clan and worked for the social upliftment of the
community. Panchayats were expected to ensure a high level of fairness, fair play and
efficiency, in the absence of which panchayats could not demand respect from the residents.
Khaps leaders passed resolutions that banned female feticide, preventing dowry from doing
wrong, abolishing sati, imposing a limit on the cost of marriages, and limiting the number of
people invited to a wedding so that the girls' family is not overwhelmed. with extra expenses.
Khap panchayats are still a popular method of doing justice at people's doorstep because they
do not involve money, less time consuming and peaceful negotiations between the parties are
possible.
Whenever there is a dispute, the panchayat is asked to resolve it. The participation of all
board members is mandatory for Khap meetings. These members conduct the trial in the
presence of the residents and the decision that is considered best in the prevailing
circumstances is made. This decision is binding on both parties. If there is an objection from
both parties, Khap leaders may reopen the issue and decide accordingly. In most cases, the
panchayat reaches agreement after consultation with residents who are free to express their
views. This right to exercise freedom of expression and expression is deeply rooted in our
democratic system and also enshrined in Article 19 (1) of the Constitution. 1 (g) (Senthilraja,
2010). Traditionally, women played a major role in the panchayati system. They were
assigned as village leaders and council members.

In case of discrepancies, panchayat members intervene at a stage where an initial information

report (hereinafter referred to as FIR) is filed at the police station, but before the case is filed
in court. This is especially useful for poor people who cannot appoint attorneys or pay heavy
court costs to continue to fight litigation.

Recently in a small village in Haryana; Khap panchayat was able to settle a marriage dispute
involving an educated couple. After mediation, the couple decided to live together and the
case was not listed in court to obtain a divorce decree. Similarly, there have been several
cases where Khap panchayats have managed to make peace between the disputed parties. If
the case is listed in court, Khap panchayat does not interfere with the court order. The court
decision is binding on the parties. In the event of a conflict between the decision of the Khap
panchayat and the court, the court order prevails. However, if Khap panchayat intervenes, the
judge will take his views into consideration before giving the final verdict. Khap panchayat is
believed to be better informed about internal tensions than the foreign law. In these matters,
district courts are therefore seeking the help and support of Khap panchayats.

In the case of caste marriages, the greatest punishment Khap panchayats can impose is to
reprimand the couple, expel them from the community, or interrupt their hukka-paani.

Most khap panchayat leaders deny notorious honor killings that occur due to intolerance
between caste / inter-Gotra marriages or refuse to comment on such sensitive issues. In most
cases, panchayat is not even informed when relatives are killing their children, as these events
happen late at night. In these cases, the remedy available to the couple is to seek police
protection, and there are separate rooms at the police station where they can seek shelter until
the threat ceases to exist. Usually, the couple escapes from their original villages and breaks
all social ties. The reason for these murders is that relatives feel that children have
embarrassed their families by marrying in the same drop. Khap panchayat is not a binding
authority, nor does he know the law for prosecuting honor killings. These honor killings are
punishable by the court and tried according to the law.

Even political parties work in teams with these panchayats. In one of these cases, there was
turmoil in one of the villages of Haryana State, because the Jats called for reservations at
educational institutions and government jobs. Because of the turmoil, police opened and one
of the members of the Jat community was killed. Chief Minister Bhupinder Singh Hooda
asked Khap panchayat to settle the matter. Even the court refused to accept the case and
asked Khap panchayat to settle it. Khap panchayat solved the problem without further loss of
life and resumed normalcy.

Thus, Khap's panchayats play an important role in dispute resolution, where even the court
does not fail or refuse to interfere because of unshakable belief in Khap's panchayats. It is
people's belief that justice is done without any prejudice or prejudice. Thus, khap panchayats
play an important role in protecting residents' rights in resolving their property-related
marriage disputes. It also plays a role in promoting change in society, working to eradicate
social ills and increasingly encourage women to participate and express individual opinions.
The way the media reports cases of khap panchayats is an exaggerated one-sided view. We
cannot rely on these reports and ignore the noble work these panchayats engage in.

Modern Approach:

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 are against law.
Rule of men rather than rule of law prevails (emphasis added).

Female feticide and child death rates are highest in northern India, especially in Haryana,
where the sex ratio is very disproportionate. According to the census, there are only 792
women to 1000 men. These khap panchayats did not fail to take measures of social elevation,
such as the spread of primary education, the criminalization of the murder of girls - the
reasons that led to the formation of these panchayats in ancient times. Women are not
adequately represented at decision level. An important criticism of this mechanism is the
agitation of young people, as it disregards their ambition.
In one case in Bagpat district of Uttar Pradesh, Khap panchayat had said that women would
not be allowed to carry mobile phones and that they would not be able to visit the market
without classification if they were under 40(Ramachandran, 2012). This is clearly a violation
of the fundamental right to free movement throughout India, as guaranteed by Article 19 (2).
1 (d) of the Indian Constitution. The logic of the Khap leaders is that the saying protects
women from harassment. However, harsh actions must be taken against harassment, which
should not be allowed to circulate freely and not vice versa. Our so-called leaders were on the
news to blame women for the rapes committed against them and demanded to reduce
women's marriage to 16 years (The Economic Times, 2012). This callousness and deplorable
comments about the femininity of these leaders must be seriously addressed.

Khap panchayat forbids marriages between Gotras, which is very debatable. Under the law,
anyone who reaches the age of 18 for a woman and 21 in the case of a man has the right to
marry on their own. Under the Hindu Marriage Act, 1955; only 'sapinda marriages' are
prohibited and if they have a common linear ascendant. Marriage within the same drop / caste
is not prohibited by law. This causes a conflict between custom and law. In most cases, the
girl's family members are unwillingly married at an early age for fear of a romantic marriage
later. A forced marriage is carried out by relatives without the informed consent of the bride.
This causes a lot of physical and emotional pressure, and young brides often suffer physical
violence, rape, kidnapping, torture, slavery, sexual abuse, dowry death and murder.

A senior member of the khap panchayat made a statement at a news conference: "To save
society, dissenters must be killed. The parents of such children must kill them because they
create the shame of society and have no right to live. Only then can the honor of society be
restored." (Kumari, 2011) Unfortunately, this glorifies the murder and the perpetrators go
unpunished, and it is strongly recommended that not only the perpetrators are punished, but
that those responsible for these murders are severely punished.

A sad example of the gotra row is that of Ved Pal Moan, brutally beaten to death last year
when he tried to secure his wife who was confined by her parents at Singhwal village in Jind
district. He was escorted by a police party and a warrant officer of the High Court. Ved Pal
had married neither within his gotra nor within the same village. In this case, another absurd
code was invoked by the khap: that the couple violated the custom of not marrying in the
neighbouring village as it forms part of bhaichara (brotherhood). A khap congregation held in
March 2009 publicly pronounced the death sentence for Ved Pal, and it succeeded in
executing it in June. As couples are selectively targeted, it is clear the real motive is to
control women's sexuality to ensure that property remains within the patriarchal caste domain
(mainly Jats in Haryana).

The sarv khap panchayat also called for social boycott of individuals who raised their voice
against the caste panchayats.

In the case of Lata Singh vs. US State and Anr (2006) 5 SCC 475) it was declared that the
petitioner was large and free to choose his life partner. The Hindu Marriage Act of 1955
clearly does not prohibit caste marriage. In fact, caste marriages help abolish the caste system
and should be promoted. Criminals must be severely punished in the event of violence or
threat to the lives of such couples. The court allowed the petition. In this case, the Supreme
Court had the opportunity to limit the powers of the Khap panchayats and declare them
unconstitutional and ultra vires. However, the Court failed to do the same.

One of the main critics of this lawsuit is that Judge Katju states that the parents of such
children can abandon them. Such custody is not justified because marriage of choice is not a
crime. Such couples are free to be part of the community. The hostile behavior of family
members causes emotional trauma and ultimately creates negative emotions that lead to
failure of the family institution.

A common practice among Khap Panchayats is to invalidate a marriage between Gotra. In

extreme cases, the husband and wife are forced to become brother and sister in front of the
entire village, and the child born out of wedlock is handed over to family members or
donated for adoption without parental responsibility. In the event of such cruelty, law
enforcement agencies must intervene and prevent such practices. Unfortunately, the law was
ignorant because these cases are dealt with exclusively by Khap panchayat who have
prejudices in their minds. The court refuses to interfere in caste matters. Recently, these
panchayats sought to amend the Hindu Marriage Act of 1955 where the same Gotra marriage
would not be recognized. This will adversely affect the personal affairs of other religions,
such as Sikhs, Jains and Buddhists (Senthilraja, 2010). Such irrational demands are ultra vires
and unconstitutional. The extent to which its operation is justified under strong political ties
and to protect its distinct identity.
Law of honor killing:

More than 1000 young people in India are done to death every year owing to ‘honor killing’
linked to forced marriages and the country needs to introduce stringent legislation to deal
firmly with the heinous crimes.

Forced marriages and honor killings are often intertwined. Marriage can be forced to save
honor, and women can be murdered for rejecting a forced marriage and marrying a life
partner of their own choice who is not acceptable for the family of the girl. In traditional
societies, honor killings are basically ‘justified’ as a sanction for ‘dishonorable’
[Link] of Affairs and the Law and Justice are preparing to amend the Indian
Penal Code (IPC) to define the act of “honor killing”. The demand for such a law was made
repeatedly with the objective of stamping out this social evil. “The aim is to provide for
deterrent punishment for caste and community panchayats which should be booked for aiding
and abetting such killings and as accomplices to the murder.

Supreme Court of India, concerned over the spate of recent ‘Honor Killing” has asked the
Centre and Eight State Governments to submit reports on the steps being taken to prevent this
barbaric practice. The Court’s decision, which came in the wake of a petition filed by an
NGO that seeks a broad and comprehensive strategy to combat the ‘Honor Crimes’ could be
just what is required to make those in power come down hard against those responsible for
the crimes.

Noting the issue has acquired alarming proportions in India and abroad. While the Indian
Government is still mulling a harsh penal law to penalize ‘Honor Killings’, the UK has made
forced marriages a civil liability under The Forced Marriage (Civil Protection) Act, 2007.

Be it forced marriages or Honor Killings, the social dimensions and implications are the
same. The larger issue is their resolution. Whether it is societal or legal, is a question which
will baffle legal experts, legislators and the people who practice these heinous crimes.

Comparing the legal framework adopted by the various countries so as to effectively combat
the problem of forced marriages. It is the States’ and the society’s responsibility to protect the
human rights of its young citizens, to avoid forced marriages, to create possibilities and
opportunities for the people concerned to break free and to find protection, support and aid.
Education of the young women and men as well as their parents is just as much necessary as
a broad concept to empower the young people concerned with the problem.

CONCLUSION
Khap panchayats gathers people of the same caste who decide to be at peace. They came into
force to fight the cause of human rights, but somewhere they lost that goal. Instead of now
the moral police of Khap panchayat and when a person rebels; He is punished according to
his whims and imagination. These panchayats have no authority to enforce or declare the law
under the constitution, but it is a common practice. In reality, they only have the power to
form an autonomous government and elevate rural areas and align them with issues of
opportunity, employment, education and economic growth in urban areas. Khap panchayats
failed to perform these functions effectively. There is a big difference in Khap panchayats
customs and law. This has resulted in much criticism among educated youth. Your right to
choose your life partner must be respected. The law must act strictly against honor killings.
No caste, society or society is superior to the right to live in dignity.

Khap leaders are often uneducated seniors and lacking flexibility in their approach. Through
education, they can be made aware of existing law and work accordingly. This will help
bridge the gap between older and younger generations. Women's participation should be
promoted at the central level and everyone should have a fair hearing before making a
decision. In this way, Khap Panchayats can successfully maintain their identity, gain
popularity and contribute to the social and economic elevation of their people. Not only that,
but they can be a big help to the government and bring about social reform at the village
level.

The above analysis therefore indicates that the long-awaited local institutional justice has
diminished over time. The downward trend of Panchayati Raj, as suggested by our founding
fathers, is an alarming sign to which the law and the community must respond immediately.