The issue of the dogged Khap Panchayats in India

Abstract

The extremely plural nature of the justice system in India has been examined in this
paper, by explaining how the Khap Panchayats function in India, and how the formal and
informal systems of law clash with each other. A historical introduction of the Khaps has been
provided, with a discussion on their demands and the methods used by them, along with an
explanation on the sources of power for the Khaps. The paper studies the relationship the Khaps
have with the judiciary and the executive, along bodies similar to the Khap Panchayats. Lastly,
the paper talks about how the elimination of Khap Panchayats is impossible and unviable, and
a liaison might be the solution.

Keywords

Khap, justice, legal pluralism, court, panchayat, honour.

Introduction

“The gulf between traditional values and governmental values, as embodied in the
Indian Constitution, is nowhere more clearly seen than in the concept of ‘justice’” (Baird 1998,
338). The existence of Khap Panchayats has been a disputed topic in India since a really long
time. The inhumane practice of honour killings has troubled our country since ages. The Khaps
practice directly in contrast with the formal courts and assert their dominance in the rural setups
of dispute resolution. I would be looking at the hurdles in eliminating the Khap panchayats,
and whether that would be a viable solution; and if not their elimination, then what could be
the way forward. This has been done through looking into the history of the Khaps and the
sources of their power, followed by the way in which the judiciary and the legislature have
tried to combat them.

Review of Literature

Extensive work has been done on the Khaps in India, and the study of the literature tells
us various ways in which the Khaps govern the social lives of people. Kokal, in her article,
(Hope for Justice: Importance of Informal Justice Systems 2013) talks about how the Supreme
Court is willing to consider the importance of the role played by the Khaps, and talks about the
popularity of Khaps in informal disputes. The article talks about the courts’ wish to establish
dialogue with the Khaps, and yet their staunch stance against them. Kumar’s article, (Judicial

Electronic copy available at: https://ssrn.com/abstract=4018757

Response Towards Khap Panchayat 2013), accounts the historical and structural presence of
the Khaps, and what makes people comply to their decisions. Kumar talks about the various
court precedents, and existing legal provisions which support the elimination of the Khaps.

Singh brings out the causes of the power given to the Khaps in his article (Khap
Panchayats : Honor Killings in India 2015), and the various offences committed by them by
the misuse of the power. He talks about the failure of the eradication of the Khap, and the
political support extended to them. Rajpurohit and Prakash give a detailed account of the ways
in which the government is attempting to limit Khap activities in their article (Khap Panchayat
in India: Legitimacy, Reality and Reforms 2015). Their article talks about the various statutes
introduced and amended in order to curb the Khap malpractices, and explains how the
government has dealt with them.

Existing literature on Khaps tell us how the Khaps have continued to work despite the
advent of modernity and development, and how despite of constant efforts, they are not
illegitimized. I would use this literature, and additional research to attempt to find a reason for
this.

Research Method

In order to formulate my findings, I have used four sources of data. Firstly, I have
studied numerous academic journals, who have focused their work on the Khaps. Secondly, I
have studied news articles, ranging back to 2010, in order to know about statements made by
various people and institutions with respect to the Khaps. Thirdly, I have studied court
precedents along with central and state statutory provisions on the Khaps. Lastly, although I
have not referenced to it directly, I have taken inspiration from the documentary “Izzatnagari
ki Asabhya Betiyan” directed by Nakul Sawhney.

Findings and Discussions

Introducing the Khaps:

Khap Panchayats in India traces its roots to Akbar’s reign, when the Mughal Emperor
recognised the authority of Khaps by giving a charter to the Balian Khap of western Uttar
Pradesh, for fighting the repression against the Hindus (Singh 2010, 17). Navigating to 1833,
the British East India Company introduced a modified variant of the Mahalwari system called
gram vyavastha, in the then Punjab province, which now extends to the present-day Punjab,
Haryana, and parts of western Uttar Pradesh. In the gram vyavastha, the revenue responsibility

Electronic copy available at: https://ssrn.com/abstract=4018757

was given to a few landed magnates, and these elites began controlling the socio-political lives
of the peasants under their jurisdiction (Kumar 2013, 5). When these bodies expanded into the
local self-government, with their consolidation during the 1857 Revolt (Singh 2010, 18), it
gave rise to the institutionalised Khaps.

Four broad categories of traditional panchayats in Northern India exist, namely, caste,
village multi-caste, the farmer-retainer and any single-purpose panchayat. Furthermore, these
panchayats are run on the four corner stones of rural life, being izzat (honour), aikya (unity),
biradari (community) and bhaichara (brotherhood) (Yadav 2009, 17). The traditional
panchayats appear to be more effective than statutory panchayats because the decisions taken
by them are based on these corner stones which uphold the morality of traditions (Chowdhry
2007, 96). A Khap originally consisted of 84 villages, and a unit of seven villages was called a
Thamba and 12 Thambas would form the unit of 84 villages, a Khap (N. Kumar 2013, 108).
The khaps have a simple two-tiered political structure. The grassroot is the Khap Panchayat,
comprising of some villages, and the other is Sarv-Khap Panchayat which comprises of all
Khaps falling within its adjudicative domain (V. Singh 2015, 2). The khaps are usually
organised on the basis of gotras, derived from the concept of ancestry. However, some
historians have discovered that the origins of gotras are linked to professions or locality, rather
than a specific person/personality (Bharadwaj 2012, 63).
Demands of the Khaps:
The Khaps’ demand is an inexhaustive list revolving around the governance of marriage
and caste issues. Apart from a ban on intra gotra and inter caste marriages, the failure of which
would lead to the “anarchy of society” (Sarkar 2013, 69), the Khaps yearn for several other
legislative changes as well. They have called for lowering the legally permissible age for the
marriage of women by the way of an amendment into the Hindu Marriage Act, and have asked
for equating their powers with the Lok Adalats. The khaps also demand for constituting
provisions for the reservation of Jats in the government employment and educational institutes
(Ahlawat 2012, 17). Khaps also intervene in extremely personal and trivial affairs, like the
dressing of women, or them possessing electronic devices like mobile phones (Mahapatra
2013). The method the khaps use is unconstitutional, as they issue diktats in order to make their
demands known and the failure to comply with these diktats often lead to fatal penalties being
imposed by them. Khaps have instilled a fear of social sanction within the minds of people,
and they believe that this acts a deterrent, and the moral pressure exerted by them, as well as

Electronic copy available at: https://ssrn.com/abstract=4018757

the fear of challenging their barbaric injustice, compels relatives of the social transgressors to
ostracize their families (N. Kumar 2013, 109).
Sources of the Khap power
Gender inequality, rights, and development, are a rhetoric residing in the Haryana dust,
and the Khaps do not tolerate any interference with the sacrosanct social norms. The Khaps are
able to function because the policemen and the politicians openly support them, by endorsing
the enforcement of the values imposed by the Khaps, and by allowing revenge to be taken
against the social transgressors (Kaur 2010, 14). The Khaps’ demand of the amendments to
the Hindu Marriage Act to forbid inter-gotra marriages has been supported by a few Congress
leaders like the former Chief Minister of Haryana, Om Prakash Chautala, and apparently
‘modern’ MPs like Naveen Jindal (Joshi and Naqshbandi 2010), who rely on the authority of
Khaps, who act as vote banks. BJP leaders, like the current Chief Minister of Haryana, Manohar
Lal Khattar, have also come out in the support of Khaps, claiming that the practices of the
Khaps are ‘scientific’ in nature (Ghazali 2020), along with Delhi Chief Minister Arvind
Kejriwal protecting the Khap interests and not allowing its abolishment (Reuters 2014).
Furthermore, local communities are also of the view that dispute resolution facilitated by
informal avenues like the Khaps deliver more equitable and effective judgements (Kokal 2013,
22), and the Khaps act as the custodians of tradition in the rural set ups.
One of the main sources through which the Khaps derive their power is the distrust of
the people in the statutory courts. Research has shown that traditional and informal forums of
dispute resolution have remained to be more popular, since the formal bodies focus on
distinguishing between a winner and loser, rather than maintaining a social equilibrium, which
is more conducive to injustice (Nagraj 2010). The people think that the courts would overlook
the complicated social factors surrounding an issue, and the expensive and procedure-bound
justice system would not be delivering justice backed by reform (Dhagamwar 2009, 16), as
justice is ultimately a subtle ideal (Sen 2009). Other reasons cited by people for their support
of the Khaps are that the Khaps usually deliver the verdict in a single sitting, whereas the formal
courts sometimes drag simple issues for years; and people feel harassed by the complex
procedures followed in formal courts, whereas they feel that the Khaps are sensitive to such
issues and show neutrality in their performance (V. Singh 2015, 7).
Khap Panchayats and the Judiciary
The courts recognises the critical role played by the Khaps acting as informal justice
systems resolving local disputes (Kokal 2013, 22), and when a PIL appeared before the

Electronic copy available at: https://ssrn.com/abstract=4018757

Supreme Court seeking norms to put an end to Khap violence, the court remarked that all
arguments presented before them were from those parties who were adverse to the Khap, and
it was necessary to listen to the views of the Khap in order to present a constitutional judgment
(Mahapatra 2013). The Supreme Court is sensitive towards maintaining a balance between the
ground realities attached with the rural and traditional structures, and the secular aspirations of
an India governed by the ‘rule of law’ crafted by the educated elites. In order to strike this
balance, the Supreme Court has initiated the process of drafting guidelines to regulate the
workings of the Khaps, which has motivated the court to initiate dialogue with the Khaps
(Kokal 2013, 23). The proceedings of the court serve as an apt example of how traditional and
informal forums of justice like the Khaps are justified in the background of formal and
established courts accepted legal codes.
The Khap panchayats are termed as kangaroo courts since they use unfair methods, and
are not established under the law. The Khaps commit innumerable crimes through their
proceedings, extending to, but not limited by, violation of Articles 14, 15 (1) & (3), 19, 21 and
39 (f) of the Constitution of India, and violations of sections 34, 35, 120A and B, 107-116, 299-
304, 307, 308 of the Indian Penal Code (V. Singh 2015, 8). There are various precedents of the
courts with respect to the legality of Khaps. In Arumugam Servai Vs State of Tamil Nadu (6
SCC 2011), the Supreme Court deprecated the practices of the Khaps, and also declared them
to be ‘kangaroo courts’ since they take legal matters into their own hands. In the PIL filed by
NGO Shakti Vahini, Supreme Court appointed amicus curiae Raju Ramachandran suggested
for the conversion of the recommendation of the courts to curb the Khap into a parliamentary
statute (Sinha 2012). Furthermore, the court held that inter caste marriages are in national
interest, as they help in annihilating the caste system, in State of U.P. Vs Krishna Master and
Ors. (12 SCC 324, 2010), as it awarded the life sentence to three people convicted of practicing
honour killings. The judiciary went ahead and gave an unprecedented decision, when the
District Court of Karnal awarded the death sentence to five people accused in the Manoj and
Babli case on the grounds of Honour Killings. Though the decision was commutated to life
imprisonment by the Punjab and Haryana High Court (The Hindu 2011), the fierce opposition
by the judiciary could be perceived to act as a strong deterrent.
Khap Panchayats and the Legislature
The main objections from Khap Panchayats are on the grounds of inter caste and intra
gotra marriages. Section 2 of the Hindu Marriage Disabilities Removal Act 1946 specifically
mentions that intra gotra and inter caste marriages are permissible in India, neither does the

Electronic copy available at: https://ssrn.com/abstract=4018757

Hindu Marriage Act 1955 provide any restrictions of such marriages1. Yet the Khaps use social
sanctions and violence in order to prevent and punish such occurrences. Although no concrete
statute has been formulated by the Parliament, the legislature is making efforts to put an end to
evil practices of the Khaps. In 2011, the Prohibition of Unlawful Assembly (Interference with
the Freedom of Matrimonial Alliance) Bill was introduced in the Parliament, and in 2015, the
Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name
of Honour and Tradition Bill was introduced in the Rajasthan State Legislative Assembly.
These bills prohibit and criminalise the assembly of people to condemn a marriage on the basis
that such marriage has dishonoured the caste or gotra, tradition or the community, which would
therefore limit the Khaps’ convention taking decisions on the validity of such marriages, and
the punishments awarded by them.
The legislature also introduced the Endangerment of life and Liberty (Protection,
Prosecution and other measures) Act in 2011 in order to not only prosecute Khaps who commit
honour killings, but also those who are engaged in social boycotts, denial of facilities and
services and deprivation of the means of livelihood. The government had also planned to amend
the Special Marriage Act 1954, in order to reduce the period of notice in cases of court
marriages, from 30 days to zero. The government believed that this would reduce the
occurrences of ‘extra-judicial’ proceedings taking place against a couple willing to get married
under this Act (Economic Times 2010). The complicity of the state governments in Khap
diktats is reprehensible as is that of politicians if vote banks are all they care about (Kaur 2010,
16). Thus, it is the duty of the Central Government to step in to ensure that the retrogressive
khaps are dealt with a firm hand. Recognition of the primacy of the law of the land regarding
marriage will loosen the hold of extra-judicial bodies like the Khaps on the right of couples
and families to make their own conjugal decisions.
Caste Atrocities similar to Khap Panchayats
Although Khap Panchayats are primarily dealings of Norther India, a similar extra-
judicial body is prevalent in South India, specifically in Tamil Nadu, known as Katta
Panchayats. The media has characterised these bodies as the ‘devil’s court’, and they are
synonymous with ‘criminal caste panchayats’, as they are morphed into a demonized kangaroo
court (Headley 2015, 228-230). Similar to the Khaps, the Katta Panchayat was characterised
as an informal and sometimes criminal organisation, without official recognition or local

1
Although the section 5 (v) of the Hindu Marriage Act 1955 prohibits sapinda marriages, the Khap
Panchayats demand extends beyond sapindas.

Electronic copy available at: https://ssrn.com/abstract=4018757

legitimacy. Similar to the belief in the Khaps, Headley through her interviews of the Tamil
Nadu locals discovered that the people knew that the Katta Panchayat had flaws, yet they would
choose them as a preferable recourse. They did not feel that a greater harm was committed
‘under the banyan tree’ than inside formal courts and certainly much less than behind the doors
of a police station (Headley 2015, 247). This belief of superiority of the Khap, and the notions
of ‘God Lives in the Panch’ and ‘Panch Parmeshawar’ are common to both Khap and Katta
Panchayats.
On the other hand, if we compare the caste atrocities between eastern and north western
India, we will find that in the former caste atrocities are organised and institutionalised at a
much larger level, while in north-west India, caste atrocities hardly go beyond the level of the
Khaps. Perhaps this is one of the reasons why there is absence of organisations like the Ranvir
Sena in north-west India, where incidents of caste atrocities are mostly against individual
transgressors rather than mass killings and limited to relatively spontaneous incidences, as
opposed to planned attacks (S. Kumar 2013, 5).
The Way Forward
An abundance of research and literature on the Panchayati systems suggests that the
inclusion of women and subaltern sections in the panchayats has had minimal negative impact
on the functioning of these panchayats. The decentralisation of the Khaps could have a positive
impact on the lives of the people by making them feel empowered and democratic, and the role
of Khaps as a non-formal system of justice always overshadows their other roles (Chaudhry
2010). The Khaps could be transformed into effective and empowered forums of democratic
representation if the weaker groups are emboldened to challenge the dominant groups
(Teltumbde 2011, 11). This might be a more suitable way forward, as elimination of Khaps
seems to be impossible.
“We must not forget these idyllic village-communities, inoffensive though they may
appear, had always been the solid foundation of Oriental despotism” (Marx)
The Khaps have been able to survive for such a long time due to its suitability and its long
historical existence (Gupta 2012, 1145). Khaps cannot be abolished by statutes since they have
with them the conscience of the common persons. The incorporation of moral requirements
coherent with national and state laws could be a viable solution (Rajpurohit and Prakash 2015,
84). The mandatory death sentences were struck down in India through Mithu vs The State of
Punjab (277 SCC 1983), and Khaps continue to award death penalties to people, often not

Electronic copy available at: https://ssrn.com/abstract=4018757

looking beyond the evidence provided by a party (S. Sinha 2012, 20). Yet, the Khaps continue
to exist, due to unhealthy political practices in India.
Conclusion
The dynamic relationship of law and society has been examined in the paper. The
situation of the Khaps in India could be used as an appropriate example of the examination of
a legally plural society by Sally Merry (1988). Merry explains that legal pluralism is the way
in which formal and informal systems uphold each other. The Supreme Court did not permit
proceedings against the Khaps to advance in absentia, and this explains the inherently plural
nature of law in India. We cannot retort to classifying Khaps as nonstate bodies, just because
they are not legitimized through a formal code. Khaps are sanctioned by the people, and it is
extremely important to break down the binaries like state-nonstate and formal-informal, in
order to strike a harmonious chord. Acceptance of the importance and legitimacy of the Khaps
would be the first step in reigning in their criminal activities.

References
Ahlawat, Neerja. 2012. "The Political Economy of Haryana's "Khaps"." Economic and
Political Weekly 47 (48): 15-17.

Baird, Robert D. 1998. "Traditional Values, Governmental Values, and Religious Conflict in
Contemporary India." BYU Law Review 337-357.

Bharadwaj, Suraj Bhan. 2012. "Myth and Reality of the Khap Panchayats." Studies in History
(SAGE Publications) 28 (1): 43–67.

Chaudhry, D.R. 2010. Bringing khaps to justice. April 11. Accessed April 16, 2021.
https://www.tribuneindia.com/2010/20100411/edit.htm#1.

Chowdhry, Prem. 2007. Contentious Marriages, Eloping Couples: Gender, Caste and
Patriarchy in Northern India. New Delhi : Oxford University Press.

Dhagamwar, Vasudha. 2009. "Panch Parmeshwar." Economic and Political Weekly 44 (31):
13-16.

Electronic copy available at: https://ssrn.com/abstract=4018757

Economic Times. 2010. Amended law to deal with khaps. July 8. Accessed April 15, 2021.
https://economictimes.indiatimes.com/news/politics-and-nation/amended-law-to-deal-
with-khaps/articleshow/6140998.cms.

Ghazali, Mohammad. 2020. Manohar Lal Khattar Supports Khaps, Says "Should Not Marry
Within Same Gotra". January 10. Accessed April 13, 2021.
https://www.ndtv.com/india-news/manohar-lal-khattar-supports-khap-panchayat-says-
should-not-marry-within-same-gotra-2162172.

Gupta, Juhi. 2012. "Khap: Culture above Legislature?" Indian History Congress 73: 1445.

Headley, Zoé E. 2015. "'The Devil's Court!' The Trial of 'Katta Panchayat' in Tamil Nadu ." In
Regimes of Legality: Ethnography of Criminal Cases in South Asia, by Daniela Berti
and Devika Bordia, 227-257. New Delhi: Oxford University Press.

Joshi, Vishal, and Aurangzeb Naqshbandi. 2010. Naveen Jindal, Chautala join hands, lobby
for khap panchayats. May 11. Accessed April 12, 2021.
https://www.hindustantimes.com/india/naveen-jindal-chautala-join-hands-lobby-for-
khap-panchayats/story-WKDVys8p5dIMa8KaFlUVvN.html.

Kaur, Ravinder. 2010. "Khap Panchayats, Sex Ratio and Female Agency." Economic and
Political Weekly 45 (23): 14-16.

Kokal, Kalindi. 2013. "Hope for Justice: Importance of Informal Justice Systems." Economic
and Political Weekly 48 (45 & 46): 22-23.

Kumar, Ashutosh. 1992. "Marx and Engels on India." The Indian Journal of Political Science 53
(4): 493-504.

Kumar, Navin. 2013. "Judicial Response Towards Khap Panchayat." Journal of Global
Research & Analysis 2 (1): 108-115.

Kumar, Sanjeev. 2013. "Historicising the Khap Panchayat." Economic and Political Weekly 48
(6): 5.

Mahapatra, Dhananjay. 2013. Khaps can't ask women not to carry mobiles or dress in a
particular way: Supreme Court. January 14. Accessed April 14, 2021.
https://timesofindia.indiatimes.com/india/Khaps-cant-ask-women-not-to-carry-
mobiles-or-dress-in-a-particular-way-Supreme-Court/articleshow/18017065.cms.

Electronic copy available at: https://ssrn.com/abstract=4018757

 —. 2013. Norms must to end khap violence: SC. January 5. Accessed April 14, 2021.
https://timesofindia.indiatimes.com/india/norms-must-to-end-khap-violence-
sc/articleshow/17894540.cms.

Merry, Sally Engle. 1988. "Legal Pluralism." Law & Society Review 22 (5): 869-896.

Nagraj, Vasudha. 2010. "Local and Customary Forums: Adapting and Innovating Rules of
Formal Law." Indian Journal of Gender Studies 17 (3): 429-450.

Rajpurohit, Dr. G.S., and Dr. Anand Prakash. 2015. "Khap Panchayat in India: Legitimacy,
Reality and Reforms." International Journal of Allied Practice, Research and Review
2 (3): 81-90.

Reuters. 2014. Arvind Kejriwal says won’t ban khap panchayats. January 31. Accessed April
13, 2021. https://www.livemint.com/Politics/7qR5xjOC4LtTphtIh48slJ/Arvind-
Kejriwal-says-no-question-of-banning-Khap-Panchayats.html.

Sarkar, Paula Chakravartty & Sreela. 2013. "Entrepreneurial Justice: The New Spirit of
Capitalism in Emergent India." Popular Communication, The International Journal of
Media and Culture (Routledge) 11 (1): 58-75.

Sen, Amartya. 2009. The Idea of Justice. London: Cambridge Core.

Singh, Ranbir. 2010. "The Need to Tame the Khap Panchayats." Economic and Political
Weekly 45 (21): 17-18.

Singh, Vineet. 2015. "Khap Panchayats : Honor Killings in India." Tata Institute of Social
Sciences 1-11.

Sinha, Bhadra. 2012. Rein in khaps, prevent honour killings: SC panel. July 17. Accessed April
15, 2021. https://www.hindustantimes.com/chandigarh/rein-in-khaps-prevent-honour-
killings-sc-panel/story-GGLGT5YHyJtaDV8lNSVbLJ.html.

Sinha, S.B. 2012. "To Kill Or Not To Kill: The Unending Conundrum." National Law School
of India Review (Student Advocate Committee) 24 (1): 1-29.

Teltumbde, Anand. 2011. "India's (Jati) Panchayati Raj." Economic and Political Weekly 46
(36): 10-11.

10

Electronic copy available at: https://ssrn.com/abstract=4018757

The Hindu. 2011. Death sentence commuted in Manoj-Babli case. March 12. Accessed April
15, 2021. https://www.thehindu.com/news/national/Death-sentence-commuted-in-
Manoj-Babli-case/article14943294.ece.

Yadav, Bhupendra. 2009. "Khap Panchayats: Stealing Freedom?" Economic and Political
Weekly 44 (52): 16-19.

Cases Cited

Arumugam Servai vs State Of Tamil Nadu [2011] SCC 405 (Supreme Court of India), p.6.

Mithu vs The State of Punjab [1983] SCC 277 (Supreme Court of India), p.2.

State of U.P. Vs Krishna Master and Ors [2010] SCC 324 (Supreme Court of India), p.12.

Statutes Cited

The Constitution of India.

The Endangerment of life and Liberty (Protection, Prosecution and other measures) Act 2011.

The Hindu Marriage Disabilities Removal Act 1946.

The Indian Penal Code 1860.

The Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial

Alliance) Bill 2011.

The Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the
Name of Honour and Tradition Bill 2019.

The Special Marriage Act 1954.

11

Electronic copy available at: https://ssrn.com/abstract=4018757