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Kangaroo Courts and Khap Panchayats

The recent gang-rape
rape of a 20 year old in West Bengal by members of a self-appointed
self appointed kangaroo court has once
again raised the hackles of the Indian public, who are no strangers to daily cases of sexual violence against
women by self-styled vigilantes
ntes and moral guardians of the community. In the following discussion paper, we will
try to understand what kangaroo courts are and why they do exist. We will also look at Khap Panchayats and the
various controversies surrounding them. We will also fish for
for solutions, if any, to the problems posed by these
bodies.
What is a kangaroo court?
It refers to an unauthorized trial that takes place in an unfair, biased, or hasty
manner and most often ends in a harsh punishment that is not commensurate with
the gravity
avity of the alleged crime. The term may even apply to a lawfully-constituted
lawfully constituted
court held by a legitimate judicial authority who intentionally disregards the fair legal
procedures and precedents.
They are often held by a group or a community to give the appearance
appearance of a fair and
just trial, even though the verdict may in reality already been decided before the trial
has begun. Hence, they do not offer impartial justice to the accused. Such courts
typically take place in rural areas where legitimate law enforcement
enforcement may be limited.
According to Merriam Webster, kangaroo courts can be used to refer to:

A mock court in which the principles of law and justice are disregarded or perverted
A court characterized by irresponsible, unauthorized, or irregular status or procedures
Judgement or punishment given outside of legal procedure

Kangaroo Courts in India

At the outset, the basic question needs to be asked is that why do we have kangaroo courts.
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What can be the
various reasons for their continued existence?

Does it represent a failure of the conventional judicial system?

Is it failure of policing?
Is it due to the continuance of feudalism in different parts of the country?
Or, are there some other reasons too?

We will see that all of the above and some other reasons too, explain the persistence of kangaroo courts in India.
India has had a long history of village Panchayats which used to settle disputes and dispense justice in the village.
The trial in more serious crimes such as murder and robbery was overseen by the king and the official judicial
system but the majority of cases were dealt with by the Panchayat itself. These Panchayats acted as units of local
self governance.

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The coming of the British led to the growth of the modern judicial system in India. This system robbed the
Panchayats of a lot of their judicial powers. However, even during the British rule, Panchayats comprised of
village elders and the zamindars used to adjudicate many cases.
Post independence, India set up a three-tier judicial system comprising of the Supreme Court, High Courts and
various subordinate courts. However, the system proved to be a slow-moving and expensive one. The police
system too suffered from a colonial hangover and the resultant inefficiency. In India, rural areas and especially
the tribal areas lack in terms of both law enforcement personnel and judicial officers and added to this are the
persistence of feudal relations and caste domination in villages, which ensures that the upper-caste elite end up
acting as the de-facto judge and jury in rural areas.
We have discussed above a few reasons and we will get to know a few more when we talk about Khap
Panchayats in the following sections.
What are Khap Panchayats?

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Khap is the informal institution of each gotra in the Jat community

which determines the customs and practices as well as religious
norms for its specific gotra. The members of each gotra elect their
headman. This headman convenes the Panchayat of his village,
called the Khap Panchayat. It is obligatory for all members to comply
with the decisions taken in the Panchayat. There is a supreme
organisation of the entire Jat community which is called the SarvaKhap and it includes all gotras Khap.

The institution of Khap has to do with Jats, who began as a

community of non-elite tillers and herders found in the states of
North-Western India and Pakistan. In the 20th century, they have
become the dominant land-owning classes in several parts of North
India, due in part to the success of the green revolution.

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In Hindu society, the term gotra means clan. It broadly refers to people who are descendants in an unbroken
male line from a common male ancestor. The gotra genealogy is usually fictional or mythical. For instance, many
Brahmins claim descent from the original eight rishis or sages mentioned in the Vedas. Hence, there are
Brahmins with eponymous gotras like Bhardawaj who claim descent from Bhardawaj, a sage whose
accomplishments are detailed in the Puranas. Jats in Northern India also claim lineage from among the 2,700 Jat
gotras.

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The gotra or clan system of social organisation is popular among tribal or pastoral communities. They were
popular in the ancient and medieval times but with the growth of sedentary agriculture and different kinds of
professions, the caste system and the jati system became the more popular bases of social organisation.
However, even in the 20th century, the Jat community has successfully retained the gotra system in their social
organisation.
Where are Khaps found?

They exist in western UP, eastern Rajasthan but are most powerful in the Rohtak, Jhajjar, Bhiwani, Sonepat, Jind,
Kaithal, Karnal, and Hissar districts of Haryana. However, the Khap Panchayats are not common or popular
throughout the greater Jat community. They are completely absent in Bikaner, Churu, Sikkar, Jodhpur, Nagaur,
Merta, Ganganagar and Hanumangarh districts of Rajasthan, where a large number of Jat peasants have been
residing since medieval times. In Haryana also the Jat peasants of Sirsa district are not familiar with the Khap
Panchayat.
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Do Khap Panchayats have a historical basis?

The exact origin of Khaps is unknown with some claiming their origin to lie as far back as 6th century AD while
others state a much later date in the 14th-15th century. One of the most important historical documents relating
to Khaps is a handwritten booklet written by Pandit Kanharam. According to this document, the first meeting of
the Sarva-Khap
ap Panchayat was held as early as 1195 AD. The booklet mentions that Sarva-Khap
Sarva
Panchayats had
in the past opposed the anti-Hindu
Hindu policies of the Mughal emperors and the Sultans of Delhi.
However, there is a fair amount of controversy regarding the origins of Khaps. Many experts have sought to
debunk the claims of long historical origins of Khap Panchayats. They argue that Khaps do not have any basis in
ancient social institutions, but are of recent origin and have come into existence in the context of modern
mode social,
political and economic conditions.
It has been argued that it was only in the 1960s that Khaps gained prominence in Jat society. This trend has been
attributed to the politics of Jat leaders such as Chaudhary Charan Singh in Western UP and Chaudhary
Chaud
Devilal in
Haryana who gave a well defined identity to the Jats.
Do Khap Panchayats have any relevance today?

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Before the judicial system of the country was in place, these Khap Panchayats helped to resolve issues. They
were socially relevant then, butt now many believe that their functioning has become less transparent and they
are in conflict with the law of the land.

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The continued importance of Khap Panchayats lies as

much in the historical
al or social context of the region
as in the continued political support to them. Jats
constitute 25 percent of Haryanas population and are
the state's largest caste group. Khaps continue to
enjoy substantial political patronage as Jat
communities form an important vote-bank
vote
for
political parties.

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However, in the last few decades Khap Panchayats have regained some sort of legitimacy via their opposition to
same-gotra marriages and
nd by raising other issues related to the economic and political interests of Jats such as
OBC reservation. They have even demanded the
status of Lok Adalats to boost their relevance.

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It is alleged that on the pretext of safeguarding

culture and tradition the Khap Panchayats are being harnessed to gain political mileage and to exploit the
ignorance of the local populace by creating mass hysteria.
hysteria. Many rural youth today are seeing Khaps as a political
alternative and have sidelined the community elders in Khaps. These younger members have a more firebrand
approach and such Khaps have become more invasive and are guiltier of overreach. Also, it has been observed
that the Khap Panchayats are being actively dominated by wealthy farmers, retired army officers and civil
servants, who use it as platform to gain political mileage.
Why have Khap Panchayats been in the news lately?
Khap Panchayats have been in the news lately for all the wrong reasons.

There have been numerous instances of Khap Panchayats sanctioning honour killings of young couples
who had allegedly committed same-gotra
same gotra marriages or had married in neighbouring villages.

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Khap Panchayats have in the past mounted a

campaign against the Hindu Succession
(Amendment) Act 2005 that gives equal
inheritance rights to women.
Khap Panchayats have demanded amendment to
the Hindu Marriage Act, 1955 to prohibit
marriages in the same gotra and within the same
village.
In 2012, in response to a spate of rapes in
Haryana, the Khap Panchayats of the state asked
the government to lower the marriageable age of
girls to 16 years to prevent rapes in the state. The
irony in this case was that one of the rape victims
was a married woman.
In Western UP, Khap Panchayats have ruled against women carrying or using mobile phones or wearing
jeans or other western attire.

Some of the Khap pronouncements have also bordered on the bizarre.

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A Khap Panchayat in Haryana's Hissar district forced a

couple who had been married for over a year to live as
siblings.
Another one in Haryana's Jind district blamed consumption
of chowmein behind the growing incidents of rapes in the
state saying it leads to hormonal imbalance. You also
know the impact of chowmein, which is a spicy food, on our
body. Hence, our elders also advised to consume light and
nutritious food," said Jitender Chhatar, a khap leader.

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The Supreme Court has declared illegal Khap Panchayats' which decree or encourage honour killings or
commit atrocities against boys and girls of different castes and religions who wish to get married or have
married.
In 2011, while announcing their decision in
in a suspected case of honour killing, the Supreme Court bench
had remarked - This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable
in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful
shamef murder. Other
atrocities in respect of the personal lives of people committed by brutal, feudal-minded
feudal
persons deserve
harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality.
Moreover, these acts take the law into their
their own hands, and amount to kangaroo courts, which are
wholly illegal.
The Law Commission had prepared a draft Prohibition of Unlawful Assembly (Interference with the
Freedom of Matrimonial Alliances) Bill, 2011.
2011. The bill sought to punish assemblies such
suc as Khap
Panchayats who have ordered the killings of couples accused of sagotra or same-gotra
same
marriages.
Union Finance Minister P. Chidambaram has also referred to Khap Panchayats as retrograde
organisations that could not be part of Indias culture.
Prominent
ominent women organisations such as the AIDWA have condemned the rulings of Khap Panchayats
and have called for banning these organisations.
Educated Indians have also been up in arms against Khaps and news shows and the popular television
show Satyamev Jayate
ayate have also taken up cudgels against Khap Panchayats and their arbitrary rulings.
However, a number of prominent politicians have advocated against the banning of Khap Panchayats
citing their historical and cultural relevance. Some of them have even supported
supported the Khaps position on
same-gotra marriages.

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Where do various stakeholders stand on the issue of Khap Panchayats?

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Now let us have an in-depth

depth look at the major criticisms levelled at Khap Panchayats

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Patriarchal and gender-insensitive

insensitive - The most significant opposition to the Khap Panchayats has come
from women organisations,
nisations, for their
misogynistic and anti-women
women stand. They
have opposed the Hindu succession act
that grants equal inheritance rights to
women. The response of Khap Panchayats
towards cases of sexual violence has also
riled many women organisations. Haryana
Hary
and Western UP have one of the lowest
sex ratios in the country and female
foeticide is rampant. However, despite low
sex ratio being an important social
problem, there have been minimal efforts
to improve the same by the Khap
Panchayats. Even more importantly,
imp
women activists are incensed by the fact
that Khaps are all-male
male associations and
women do not have any role to play in them.
Undemocratic and elite-domination
domination - Khap Panchayats represent the dominant Jat community but have
recently sought to impose
mpose their writs regarding same-gotra
same gotra marriages and village exogamy other
neighbouring communities, and particularly the weaker and less dominant communities. Further, even
among the Jats, the important positions in Khap Panchayats are being monopolised by
b the agricultural
elite and the service class of ex-armymen
ex
and civil servants.
Unconstitutional and illegal actions - Khap Panchayats impose their writ through illegal measures such as
social boycotts and fines and in many cases have even used murder and torture to carry out their
judgements. Their judgements are often in violation of the principles of natural justice and the
fundamental rights enshrined in our Constitution.
Weakening of the constitutionally mandated Panchayati raj - The dominance of Khap Panchayats has
weakened the Panchayati bodies duly elected under the provisions of the Constitution. Khap Panchayats
have in many instances impeded the working of these bodies, thus preventing them from becoming
effective bodies of local self governance in
in the regions where Khaps are dominant.

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So are Khap Panchayats equivalent to kangaroo courts?

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If we look at the definition suggested by Merriam Webster, there can be no doubts that Khap Panchayats dishing
out justice are examples of kangaroo courts. They have
have no legal basis for their existence. They do not adhere to
the constitutional principles of fairness and equality of all people and sexes. There are no codified procedures or
set rules and the punishments given in many cases are wholly incommensurate with
wi the nature of the crime;
provided what they are judging is even a crime in the first place.

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Should Khap Panchayats be banned?

There have been overwhelming public backlash against the diktats of Khap Panchayats. They have been referred
to in no uncertain
in terms as illegal, patriarchal, elitist and a relic of the unsavoury past when women were treated
as second-class
class citizens. However, is banning them really a solution?
Here are some arguments in favour of their continued existence:

A Khap Panchayat is no different from any other caste-based

caste based organisation. If we ban them, we should
also considering banning the various Rajput and Vaishya caste associations that exist in our country.
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From a legal standpoint also, banning Khap Panchayats as a whole is not feasible. The Constitution under
Article 19 explicitly allows individuals the right to form voluntary associations. This right is subject to
certain constraints but if a Khap stays within the law, then there does not arise a case for banning them.
Khap Panchayats which order honour-killings and violate the fundamental rights of citizens can be
tackled on a case-to-case basis but a blanket ban seems out of the question.
Despite the negative press, Khap Panchayats continue to command a fair degree of respect in rural areas
because of their historical and cultural relevance. They help in resolving smaller disputes related to
property and matrimonial affairs much quickly and economically than via the courts or other means.
Khaps have also been engaged in socio-economic development of their respective communities. A few
khaps in Haryana have banned female foeticide. Some of them have also initiated positive measures
such as the Save Girl Child campaign.
Further, Khap Panchayats also act as a forum for the farmers to unite and formulate a method to present
their demands and concerns to the concerned MLA/MP, ministers and civil servants.
Khaps also encourage a community spirit and respect of elders among its members.

So what needs to be done?

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The buzzword of the day in policy circles is participative governance with focus on institutions of local self
governance. If we look at it another way, then Khaps are also institutions of local self governance because they
derive their legitimacy from the ordinary people. At present, they may be oppressive, undemocratic and even
retrograde institutions, but with suitable reforms they can no doubt be transformed into institutions with a
positive agenda.

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Registration of Khap Panchayats - This step would help the relevant district and state administration in
keeping a check on the activities of the Panchayats. They can be either registered as NGOs or as special
bodies under a central or state act. The licenses of Khap Panchayats which pass unlawful and illegal acts
or transgress the domain of official courts should be revoked after a due process of investigation.
Internal democracy in khaps - The Khap Panchayats should be encouraged to promote internal
democracy in their proceedings. Any model law should specify at least some basic level of qualification
and election process for selection of Khap leaders.
Encouraging participation of women - A model Khap law should also mandate a specific minimum
percentage of women participation for granting Khap licenses. It should also be ensured that women are
participating in Panchayat meetings and their views are being factored in for decision-making. For this
purpose, district administration personnel can act as observers at Khap Panchayat meetings,
Engaging Khaps in community awareness programmes - The regions comprising the Jat heartland have a
very adverse female-to-male child sex ratio. Engaging the Khap Panchayats, whose decisions carry so
much weight in their community, is the most effective way to arrest the falling sex ratio in these regions.
Khap Panchayats should also be encouraged to discuss education, sanitation, health problems and other
socio-economic problems of the local community.
Increasing linkage between constitutional Panchayats and Khap Panchayats - The local Panchayats can
also gain from a synergy with the Khap Panchayats. Khap Panchayat leaders can be encouraged to join
gram sabha meetings and partake in social audits of government programmes and schools.

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Here are some of the steps that can be taken to deal both with the current menace of irresponsible Khap
Panchayats as well as to ensure that they function for constructive purposes:

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