In recent years,
media has systematically led a hate campaign against Khap Panchayats projecting
them as an unwanted hangover of India’s “barbaric” medieval past. Even those
who had never heard or knew the meaning of the word Khap, nor ever seen or met
a person belonging to any Khap joined the chorus asking the government to ban Khaps.
This hate campaign was ably fuelled by NGOs, most of who are generously funded
by international donor agencies to “reform” Indian society and polity. One of
them “Shakti Vahini”, filed a petition in the Supreme Court seeking a draconian
law to ban age old traditional Panchayats, especially Khaps on the plea that
they are the cause for “honor killings”, even though Shakti Vahini’s own data
submitted to the Court does not support this charge.
Even though the
entire purpose of this petition was to get the Central Government to pass a law
to ban the very existence of Khaps and other community based Panchayats on the
absurd charge that they are all “extra judicial" bodies, Khaps were kept
out of the picture as a deliberate strategy. In a well-orchestrated move,
Shakti Vahini did not make any of the Khap Panchayats a party in this case.
Instead, it made Union of India, Ministry of Home Affairs, Ministry of Women
and Child, States of Haryana, Punjab, UP, Jharkhand, Bihar, Himachal Pradesh
and Madhya Pradesh parties to the case.
In response to this
petition, the Vacation Bench of Justice R M Lodha and Justice A K Patnaik
issued a notice on 21/06/2010 to all the sarkari respondents. But since Khaps
were not included as a party, they were neither issued a notice nor informed
about the case against them.
For two and a half
years the case against Khap Panchayats was argued in absentia. Most of the
state governments who were made respondents in this case, opposed the proposed
new law to virtually ban traditional Panchayats but Shakti Vahini with the full
encouragement and support of Central government represented by the Additional
Solicitor General, Ms Indira Jaisingh kept pushing the Supreme Court Bench
hearing the case to give a stringent order for the enactment of a draconian and
unconstitutional law. This has been drafted for the Law Commission of
India by a group of feminist activists patronized by the current UPA
Government. Under the pretence of combating honour killings this law seeks to
deprive rural communities of their fundamental rights guaranteed under the
A study done by
Shakti Vahini to bolster its case against Khap Panchayats is so full of
nonsense that nowhere else in the world would it pass muster even as an
undergraduate term paper, leave alone product of a serious research funded and
supported by no less than the National Women’s Commission.
04/01/2013 as the case was near conclusion, the Supreme Court Bench of Justice
Aftab Alam and Justice Ranjana Desai indicated that they cannot pass any order
in the absence of the affected parties. Since Khap Panchayats were
not listed as parties in the case, the Supreme Court could not invite them
officially. However, the Apex Court let it be known that they are
willing to hear anybody who has anything to say on the subject.
This was reported in
all newspapers. Ravikant of Shakti Vahini took personal
responsibility to inform two of the largest Khaps – Meham Chaubisi and Sarva
Khap Panchayat of Rohtak and Jind. So a couple of days later, these
Khaps received a note on Shakti Vahini’s letter head informing them that the
Court was willing to hear their views on the subject.
At this point,
several Khap leaders approached Manushi to press us to present their case in
the Supreme Court because they feared with systematic negative stereotyping of
Khaps, they would not get a fair hearing on their own merit. I decided to argue
in person because some of the eminent women lawyers we approached were
unwilling to be associated with Khap Panchayats. The very same
lawyers, who do not hesitate to take up the case of known murderers and crooks,
were reluctant to get branded as retrogressive by representing
Khaps. Some of the male lawyers we approached felt that with Additional
Solicitor General Indira Jaisingh arguing against the Khaps they would not get
a sympathetic hearing. Therefore, I decided to appear in person
especially since I had done a good deal of research on Khaps and honour
On January 14,
2013, advocate Ashok Agarwal--an old friend of Manushi- appeared in
the Supreme Court on our behalf and sought the permission of the Court to
include Manushi and some Khaps as parties in the case and allow us to file
written submissions. He also sought permission to file
a petition on behalf of Dalal Khap.
On 02/04/2013, the
case came up for hearing. While Indira Jaisingh on behalf of Union of India and
Shakti Vahini lawyers argued for the Court to pass its orders, Ashok
Agarwal and I argued that since the case had been thus far heard in absentia,
we needed proper hearings before the court pass any orders. Indira
Jaisingh repeatedly pleaded for at least some interim orders but we stood our
ground that without hearing the affected parties any order passed by the court
would violate due process and therefore be invalid. Thus, we managed to
successfully stall any adverse orders against Khap Panchayats, including the
draconian law proposed to be enacted against them.
In this we are also
helped by the fact that Justice Aftab Alam was to retire in a few days.
Therefore, he had no time to conclude the case if fresh hearings were to be
started following our intervention.
Had the Supreme Court passed a hostile order against Khap Panchayats, it would have made headline news on front pages of all news papers and would have resulted in endless discussions on TV channels. But none of the newspapers or TV channels mentioned a word about stalling of court orders due to Manushi intervention.
We present below,
the first set of submissions made by Manushi in defense of Khap
Panchayats in the Supreme Court. This was followed by a second set of
submissions on 19/8/2013. In addition, Advocate Ashok Agarwal has also filed
submissions on behalf of Dalal Khap.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION NO. 231 OF 2010
(Under Article 32 of the Constitution of India)
In the matter of:
Shakti Vahini …Petitioners
and Ors. …
AFFIDAVIT ON BEHALF OF MANUSHI SANGATHAN IN ACCORDANCE
WITH THE ORDER DATED 14.01.2013 OF THIS HON’BLE COURT
1. That I am founder of Manushi
and President of Manushi Sangathan and Professor at the Centre for the Study of
Developing Societies, Delhi. I am fully conversant with the facts of the
case. As such, I am competent to affirm
present affidavit. That the ‘Manushi’ was founded in 1978 with the aim of
finding effective solutions for the economic, political and social problems
confronting us in India today through patient study, a non-partisan approach,
live interaction with the people concerned, and culturally sensitive, informed
activism. It takes inspiration from the
life and work of Mahatma Gandhi, and believes that rather than adherence to
dead and dying ideologies we need creative application of the essentials of his
philosophy to contemporary society to meet the challenges of our times. Manushi
Trust, instituted in 1980, provides the legal and organizational base for the
journal, in addition to a range of other activities, primarily through the
modest resources generated by the Journal's readers. Manushi Sangathan was
registered under the Societies Registration Act in 1994 as an offshoot of
Manushi Trust to accommodate the increasing range of its research, education,
and advocacy work for democratic reforms, social justice, and to strengthen
human rights for all, especially for women.
Manushi’s engagement with Khap
Panchayats began in 2010 after reading reports of honour killings attributed to
them by the media. We were asked by
several TV channels to air our views against the “Talibani” dictates of Khaps. In keeping with our approach of refraining
from condemning anyone without hearing their version first hand, we called a
meeting of prominent Khap leaders with the help of environment activist, Diwan
Singh from Haryana. It did not take long
for us to establish close rapport and in the first meeting itself we agreed
that Khaps need to make their rejection of the, so called, honour killings
public, even as they continued to assert their demand for exclusion of sagotra marriages under Hindu Marriage
Act for those communities which believed it to be taboo. A unanimous resolution to this effect was
passed in the second meeting. A video
recording of the said meeting can be produced if this Hon’ble Court so permits.
It is submitted that Manushi
condemns murder or violence of any sort and rejects those who use such violence
or coercion based upon the threat of such violence as a means of settling
scores or imposing their will or morality on others. However, despite a thorough inquiry and
investigation into the functioning of Khaps Manushi has not found any evidence
to support the contention/ proposition that Khap Panchayats are responsible for
‘honour killings’, or for the increase in violent and brutal crimes committed
in the name of “honour”. It is further
submitted that even the petitioner’s own research, as contained in the report
submitted by it to the National Commission for Women (NCW), does not support
this contention. Manushi has obtained a
copy of the report from the petitioner and the same can be produced if this
It is submitted that the Law
Commission too appears to have allowed itself to be pushed into making a
recommendation for a law aimed specifically at Khap/ Katta Panchayats, namely
the draft bill titled ‘Prevention of Interference With the Freedom of
Matrimonial Alliances (in the name of Honour and Tradition)’, without any
attempt at a consultation with or a hearing to the bodies whose functioning is
sought to be regulated, and without exploring the ramifications of such a
proposal. It is respectfully submitted
that the proposed law is patently unnecessary and, if actually enacted, will
prove itself to be as ineffective as the ample penal provisions and powers that
it aims to replace and/ or supplement.
On the other hand, such a law will inevitably prove to be a powerful
tool in the hands of vested interests, including corrupt police personnel, in
harassing well-meaning gatherings (and persons) at the local and community
levels for ulterior and collateral purposes.
Apart from the fact that that
the methodology of the study report submitted by Shakti Vahini to the NCW is
shoddy and almost laughable, the factual findings of this devious report are
completely at variance with the tone and tenor of its conclusions and
arguments. Further, a comparison of the
report done for NCW and the petition before this Hon’ble court makes it clear
that in terms of conclusions and arguments there is a significant degree of
similarity and overlap between the two.
Since it is an admitted fact that the report was finalised much after
the petition was filed, the only conclusion that can be reasonably drawn is
that the preconceived notions that actuated the petition are also reflected in
significant portions of the so called “report” to the NCW. In other words, even while the objects of the
present petition, as reflected in its prayer clause, are unexceptionable, the
manner in which the petitioner has gone about its task, whipping up a frenzy
and disdain for Khaps and other community based bodies –under the pretence of
protecting women’s rights--raises serious doubts about the competence of its
submissions before this Hon’ble court.
6. The major factual findings in
the report, including contradictions/ inconsistencies, are given below:
Para 1 of the section titled “Findings” (page 4) of the report is a
diatribe against Khaps as instruments of patriarchy and tradition and against
women and the youth. It is noteworthy that the term “patriarchy” is used very
loosely by feminist and modernity ideologues to damn everything in India and the word “tradition” invariably used
as a short hand for everything retrogressive in India even if the problem at hand
is a “modern” one.
ii. Para 2 of this section claims a clear, positive correlation
between honour killings and areas where Khap Panchayat’s are active and asserts
that “ in the district (sic) where these panchayats have no presence the
situation has remained normal”. It is
pertinent to state here that no evidence has been presented anywhere in the
report in support of this or other, similar assertions illustrating bias against
Khaps, with which the report is replete.
iii. The petitioner does not even define what constitutes a Khap and
when a gathering of people can be called a Khap meeting. Having worked closely
with Khap leaders for the last 3 years with a view to understand and document
the functioning of the Khap, Manushi Sangathan can provide this Hon’ble Court
evidence of when and how a meeting can be legitimately called a Khap meeting
and what are the various kinds of Khaps.
For the moment, it is important to note that membership of Khaps is by
birth and a Khap can be single gotra or multi gotra. While everyone born in a
gotra can claim to be a member of that Khap, every gathering of one or more
gotras cannot be termed a Khap meeting. There is a due process involved in convening
a Khap meeting, including a written “niyota” (invitation) by select community
representatives. The petitioner has not provided any evidence what so ever that
any Khap meeting was indeed convened before the honour killings attributed to
iv. The main object of paras 3 to 8, a sub-section titled ‘Khap
Panchayats and Sagotra Row’, appears to be to somehow reconcile the evidence
against the primacy of Khaps in honour crimes with the object of vilifying them
by hook or by crook. Thus, even as the
petitioner is forced to report facts that contradict its thesis because of
their overwhelming nature, it tries to make the evidence serve its purpose by
giving it a suitable “spin”. Thus, this
sub-section of the “findings” says that—
a) Khaps have been agitating and mobilising “on the gotra issue”.
Khaps enjoy mass support, cutting across all lines, on the “gotra issue”.
b) However, over 83% of the cases of such violence collected by the
petitioner pertain to inter caste marriages while the “gotra issue” was allegedly
responsible for only 3.2% of the cases examined.
c) The above facts, if true, virtually demolish the case sought to be
built up against Khaps. However, they
are followed by the assertion that ‘Khaps are exploiting “this support” to
consolidate power, and using it (the gotra issue) as “a ploy to deflect the
debate from the honour killings and the illegal diktats issued by these
groups”. Needless to say, the petitioner
does not produce even an iota of evidence in support of this contention.
d) Notwithstanding that the facts stated in the preceding paras of
the sub-section contradict its thesis, paras 7 and 8 reiterate that “most cases
of honour killings have been reported from the areas where these panchayats
have been working”.
e) Khaps are also deemed “guilty” by virtue of the fact that they are
opposed to the proposed law against honour crimes, without adverting to the
reasons for such opposition. Finally, as
if driving in the final nail in the Khap coffin, para 8 invokes the abolition
of child marriages, devadasi pratha, bonded labour and sati in “the last
century” as a justification for stern action against Khaps.
That petitioner fails to
understand the difference between “Crime” and “Culture” and the need to deal
with the two accordingly. Honour killing
falls in the realm of crime and those who have snuffed out young lives should
be speedily booked under all those clauses in the Indian Penal Code which deal
with pre-meditated murder. However,
insistence of certain communities that intra-gotra and intra-village marriages
be included in the list of prohibited marriages in the Hindu Marriage Act falls
in the realm of upholding one’s culture and traditions-which by itself is not a
That the Manushi Sangathan
had no difficulty in getting the Khaps to accept this distinction between
upholding one’s cultural practices and honouring the individual right to
dissent and break away from the social norms he/she finds unacceptable, and a
unanimous resolution to this effect was passed by Khap representatives in one
of its meetings with the Sangathan. The
said resolution will be produced in court at the time of oral hearing in the
10. That notwithstanding the clear display of bias, as described
above, para 9 of “findings” is compelled to state that “most of the couple
(sic) whose marriages have been threatened by their families hails (sic) from
the cities and some from good families”.
Since it is nobody’s case that Khaps have an influential presence in
cities, this “finding” is enough to demolish the whole case against them.
Para 10 states that “from the case studies ….. such cases (are)
rampant in almost all sections of the society.
The cases of runaway couple being threatened are not about Khap
Panchayats but our deeply ingrained caste behaviour”.
ii. Para 11 states that “The
opposition to inter caste marriages is rampant across all strata and society”.
iii. Para 12 says that “In
88.93% of the cases the girls (sic) family has been involved in the threatening
of couples/ or committing violence upon them”.
iv. Thus, “findings” 9 to 12 collectively are sufficient to give the
lie to the petitioner’s case against Khaps.
v. Para 13 asserts that it is the open and unabashed alignment of the
law enforcement machinery of the state with the families, against the “runaway”
couples, that makes it possible for the families to mobilise caste and
community interference and support against the “runaway” couples.
vi. While the failure of the law enforcement machinery is undeniable,
the second part of the proposition in para 13 is, once again, a baseless and
flagrant display of bias. The word “community” can mean anything—half a dozen
close relatives or a handful of neighbours.
vii. Para 19 states that the
police consistently “fail to enforce the laws and the various Supreme Court
guidelines”. The judgements of this
court and the Punjab and Haryana High Court in
the Joginder Kumar case, the Lata Singh case, Fiaz Ahangar case and the Pradeep
Kumar case in which “clear guidelines” have been laid down are mentioned. In para 22 it is contended that but for the
deliberate inaction of the police many lives could have been saved. But the
police not only fail in taking action against those who indulge in “honour
killings” or providing protection to run away couples, they fail victims of all
kinds of crimes, from rape to communal riots.
It points to the need for far reaching police reforms, not targeting
communities. Any legal measure that indicates communal profiling and communal
bias is discriminatory and therefore unconstitutional.
Para 23 states that people indulging in such killings need to be
‘actively prosecuted’ in order to provide deterrence. There is no evidence that
Khaps have ever prevented the police from taking such action, even.
ix. Para 26 lays a degree of
blame for a spurt in honour crimes on the 2005 amendment to the Hindu
Succession Act, which “mandated inheritance rights to daughters”. Once again, an irresponsible statement that
not only defames an entire community without an iota of evidence but also hints
that the discrimination against women inheriting property instituted in the
Hindu succession Act of 1956 should have continued for ever.
x. Paras 29 and 30 of the “Findings” are a bundle of
contradictions. In the same breath they
imply both strong support for Khaps as well as disdain for “khap dictates and
xi. Para 32 says that “voices of dissent” need to be supported, the
“growth of civil society” needs to be supported, and that agencies like the
women and child department, social welfare department, and the State Women’s
Commissions should work “proactively” on these issues.
xii. Para 33 harks back to say
that “there is need for a law on Honour Killings/ Honour Crimes which will act
as a deterrent”. It also says that the
“law should be supplemented by social mobilization needed to fight such
crimes”. Needless to say, given its
penchant for tarring diverse communities of large parts of India with the
stigma of criminality and seeking enactment of draconian laws banning their age
old community panchayats as well as their right to association guaranteed as a
fundamental right in our Constitution, the petitioner organisation would likely
be a complete failure at social mobilisation.
The petitioner organisation has made no effort whatsoever to engage with
these communities, leave alone earned the moral right to mobilise them for any
issue. The farcical study it conducted
was not done with a view to understanding the problem but to bolster its
prejudiced case against Khaps.
By contrast, Manushi
Sangathan has engaged with Khaps with an open mind, gathered extensive data,
organized dialogues in an atmosphere of mutual trust and respect. This is
evident from the fact that several Khap leaders approached Manushi Sangathan to
intervene on their behalf in this case. An important reason for Khaps seeking
the help of Manushi Sangathan is due to their legitimate fear that they would
not get a fair hearing given the widespread atmosphere of prejudice and hate
built against them in the last few years. They were shocked to learn that a
case against them was going on in the Supreme Court for so long without giving
them a chance to be heard. They are equally shocked that neither the Law
Commission nor the National Commission for Women thought them worthy of a
hearing before drafting a law aimed at curbing their fundamental right to
Shakti Vahini’s attempt thus
far has been to have the case decided in absentia. That is why Khaps were not
made a party to the petition. We are obliged to this honourable Court for having
given an opportunity to Khaps to present their case, even though at this late
stage. It is noteworthy that the notice to make submissions came on the letter
head of Shakti Vahini. But the same
organization did not consider it worthwhile to let Khaps know about its
intention, leave alone engage with them.
That the fact that Manushi
Sangathan could build a total consensus against honour killings demonstrates
that the task of social reform is possible if we don’t act as imperious,
attacking outsiders, with the arrogance and trappings of a new “civilizing
mission”. Even our former colonial
masters undertook far more serious studies of social customs and held extensive
consultations with community leaders before enacting laws against harmful
social practices. Notwithstanding that they exist and function in a sovereign,
democratic republic many NGOs of today demonstrate no accountability to
communities they target for “reform”.
They fancy themselves as accountable only to distantly located
international donor agencies who exercise an undue influence on social and
political agendas of our country through these NGOs. These NGOs claim to represent civil society
but in actual fact they are forever at war with the real civil society and its
organisations, of which Khap Panchayats are just one example. Running frenzied, ill-informed campaigns to
get this or that legislation passed under the guise of protecting women or
other vulnerable groups is the easiest way today for NGOs to play to
international galleries and justify receiving hefty grants from donor agencies
that fund them.
That it is noteworthy that the “findings” of
the study, presumably based upon the research conducted in the manner described
in the section on ‘Methodology’, do not make out a case against Khap
Panchayats. In fact, the “findings”
suggest that honour crimes are prevalent in all parts of the country, including
urban areas. They are as prevalent in so
called modern, educated and moneyed households as they are in the rural
hinterlands. More than anything else
they are a function of the pan Indian obsession with caste endogamy. That the rising trend in caste violence is a
function of the clash between modernity and tradition, not modulated by Khaps,
is reflected in the fact that in almost 90% of the cases it is the girl’s
family that is responsible for the violence.
That the report also asserts
that the main reason for honour crimes is the abject failure of the law
enforcement machinery to enforce the law and to provide the protection that
‘runaway couples’ need when they defy their families to elope. That this failure is not predicated by a lack
clarity, or of legal sanction or authority is highlighted by the statement that
the police have failed despite there being clear guidelines by this Hon’ble
court and by more than one High Court on the measures to be adopted and the
action to be taken in aid of such couples.
A murder or threats to murder are both serious criminal offences under
the IPC. The police are duty bound to take prompt action in all such cases, no
matter what the justification offered for the murder. Whether a person is
killed in the name of honour or due to a property dispute or rape, the police
have all the power it needs to arrest those who have committed or are
threatening to commit this crime. It is only when the police is lax, corrupt
and /or unprofessional in its conduct that those perpetrating honour crimes get
treated with kid gloves.
That clearly, the findings of the report are
an emphatic affirmation that the burning need of the hour is to strengthen the
law enforcement machinery of the state so that it enforces the already existing
law, rather than enact a new law that – de facto – targets a community based
civil society organisation and treats communities of an entire region as
virtual criminals. Equally clear is the
fact that the real reason for focusing upon Khaps in the manner done is because
they are seen as a soft target in the media war against patriarchy and
tradition. It is submitted that while
the elimination of the excesses of patriarchy is a laudable object, it is an
abuse of the process of the court to twist facts and present petitions to it
based upon distorted truths.
That a quick perusal of the body of the report
confirms the impression gained from the “findings”. The report is more a cut and paste
compilation that anything else. The
excerpts and writings contained therein appear to have been chosen to reflect
and accentuate the petitioner’s view that the non-modern world is a seething
cauldron of anti women, pro-patriarchy sentiment that needs to be excoriated
and, even, excised. However, most of the
material is either irrelevant to or contradicts the “findings”, including paras
1 & 2 (page 4) of the report, that honour
crimes are prevalent in Khap dominated areas and absent in areas where Khaps
are not active.
That it is pertinent to refer
to a few of the writings excerpted in the “report”. On page 56 the report contains a brief
comparison (in Hindi) between the position of AIDWA, a women’s organisation and
a Khap representative. Interestingly,
the Khap representative makes it clear that Khaps have no truck with crime,
including ‘honour crimes’, even while he defends their stand against sagotra
marriages. The factual correctness of
this stand gets reiterated by the next section, which appears to have been
compiled by the petitioner from various sources. This section, titled ‘Khap Panchayats Sagotra
Controversy and Response of the State’, at page 61, includes references to
actual cases and makes it amply clear that Khaps only intervene, if at all, in
cases of sagotra marriage. It is
appropriate to remind here that as per the petitioner’s own data and statistics
such cases comprise only 3.2% of the total cases under the rubric ‘honour
killings’, surveyed by the petitioner for its report.
That the section titled
‘Supreme Court/ High Court Judgements on Crimes of Honour’ begins at page
89. It is only pertinent to mention here
that in none of the 11 cases/ judgements cited in this section have Khap
Panchayats been indicted for the crimes mentioned therein. Clearly, had Khaps been in the practice of
involving themselves in such crimes it is highly unlikely that such fact would
have escaped mention in the proceedings in these cases. The next section, titled ‘Some Cases Where
The Law Was (sic) Failed To Protect The Lives of Victims’, at page 101 of the
report, reports four cases, in two of which some sort of a panchayat intervention
is alleged. It is submitted that even
assuming a degree of correctness to these allegations, they are patently
insufficient basis for making an argument for legislation against Khaps. The mere appearance of a lynch mob in some
cases, notwithstanding that it assumed the name ‘Panchayat’, is not ground for
permanently oulawing traditional, community based bodies with a history going
back several hundred years at the very least.
That the section starting at
page 104 lists 17 cases of crime involving women as victims. None of them seems to be related to Khaps in
any manner. This is followed by four
appendices. Appendix A, at page 106, is
a compilation of 158 cases of Honour Killings between 1991 and 2010. It is sufficient to state here that the
compilation, as it stands, is consistent with other evidence that in most cases
it is the family of the girl or the boy who are responsible for these crimes. Does the petitioner propose to demand a ban
on families or gatherings of close relatives following an elopement?
That appendices ‘B’ to ‘D’
are compilations of cases filed before the Punjab
and Haryana High Court between 2006 and 2010, by parties seeking protection
from the said court. This compilation is
a graphic argument against the proposal/ demand for a new law. It makes it clear that the failure of
protection is not on account of the absence of sufficient power in the hands of
the court. It is respectfully submitted
that if there has been a repeated failure of protection despite the direct
intervention of the Punjab and Haryana High
Court then it is patent that the mere enactment of a new law, howsoever
draconian, is not going to bring about the desired result.
That the Law Commission’s
report no. 242, containing the draft of a proposed law titled ‘Prevention of
Interference with the Freedom of Matrimonial Alliances (in the name of Honour
and Tradition)’ suffers from many of the flaws that vitiate the present
petition and the “report” to the NCW discussed hereinabove. The Commission’s report and draft bill both
target the Khaps of Haryana and Western UP, though the provisions of the bill
are couched in more general terms. Further,
it is clear from Annexure –III to the report that the Commission did not think
it necessary to dialogue with the Khaps at any stage during the preparation of
the report. Given that the Commission is
a high powered statutory body, headed by a former judge of this Hon’ble court,
it is submitted that its failure to ascertain all the dimensions of the
“problem” it was seeking to address is a matter of grave concern.
That examination of section 2
of the Commission’s report, titled ‘The dimensions of the problem and the need
for a separate law’ is sufficient to bring out the inherent problems. In para 2.1 the Commission appears to
acknowledge that “caste or community panchayats” play a constructive role in
the society to which they belong.
However, in the same sentence these institutions are dismissed with the
remark that they frequently “exceed their limits” and, as such, ‘the law cannot
remain a silent spectator’. The basis
for such an assertion is not provided in the Commission’s report but it must be
assumed that it cannot be any different from that of the petitioner’s report to
the NCW. Thus, a significant portion of
the critique of the petitioner’s report to the NCW is also relevant while
discussing the Law Commissions report No. 242.
That the Law Commission’s
justification for fresh and draconian legislation on the subject is
misconceived. Its claim (section 3.3,
page 12) that section 141 of the Indian Penal Code 1860 (IPC) does not cover
the kind of “unlawful assembly contemplated by the proposed bill” is patently
incorrect. The “second” and “fifth”
expansions of ‘common object’ in the said section clearly cover the kind of
unlawful assembly envisaged by the Commission in its draft bill.
That further, as has been
pointed out in the report of the Amici Curiae dated 19.4.2012, sections 107 and
149 to 151 of the Cr.P.C. are explicitly designed to empower the police to
prevent the commission of cognizable offences.
A police officer is empowered to arrest a person, even without a
warrant, if she/ he knows of a design to commit any cognizable offence. Besides these statutory powers it is amply
clear from the returns filed by the various state governments, as summarised by
the Amici in their above mentioned report, that these governments consider
themselves amply endowed with powers to deal with the phenomenon of honour killings
and violence in their respective states.
That such crimes continue to happen despite this is not a ground for a
fresh law. By that yardstick the entire
criminal code – Penal Code, Criminal Procedure Code and Evidence Act –
need needs to be replaced with a far
more draconian law or set of laws, as these laws have proved themselves
completely inadequate in curbing the rising spiral of crime, leave alone
reducing it. In the words of the Amici,
“The State/police officials have to take preventive action/remedial action to
ensure that the Fundamental Rights are protected, for which adequate powers are
available in Cr.P.C. The need is to effectively exercise those powers by the
That there is yet another
dimension of the issue that the Commission’s proposal fails to examine. Given that the evidence compiled by the
petitioner in its report to the NCW makes it clear that in nearly 90% of the
cases of honour crime it is the family of the girl or the boy that is behind
the offence/s, the Commission’s contention (in para 2.8, page 8) that “there
must be a threshold bar against congregation or assembly for the purpose of
objecting to and condemning …. young persons … marrying according to their
choice …..”, as a justification for proposing such a bar in its draft bill, is
patently fraught with extreme risk of abuse.
When read in conjunction with section 2, it becomes clear that even a
family discussion or conclave to discuss (or even discourage) such a marriage
(or proposed marriage) conducted within the family home would fall foul of this
provision. It is respectfully submitted
that it cannot be the object of our constitutional protections or our
‘progressive, democratic polity’ to undermine the structure or dynamics of the
family, which in India
almost invariably includes the extended family, in the name of freedom to marry
a person of one’s choice.
That a clause by clause
analysis of the draft bill would reveal that almost every clause lacks balance
or clarity or both, and suffers from the vice of extremism. Nevertheless the Commission seeks to place
its proposal as occupying the ‘middle ground’ by discussing and rejecting even
more drastic legislative possibilities, such as shifting of the ‘burden of
proof’. It is submitted that the setting
up and the subsequent shooting down of such ‘straw men’ is a well known
technique for imparting a patina of reasonableness to otherwise unviable drafts
and proposals. It is unfortunate that a
body as August as the Law Commission of India should have allowed one of its
reports to rely upon such a technique.
That killings and violence in
the name of honour are an unfortunate reality.
They have been reported from across the country and across religions and
castes. While most such crimes are
committed by the victim’s family members, given that large swaths of India
still continue to comprise close knit communities, it is entirely possible that
in some cases added pressure is brought upon the concerned couple and/ or their
families by sections of the community, which could be a religious body, a
village body, a inter or intra caste body, or just neighbours. It is submitted that there are no short cuts
to understanding or resolving such situations.
A comprehensive analysis of the various kinds of external pressures in
each kind of honour crime is needed prior to coming up with recommendations to
curb those external pressures.
That Manushi seeks leave to
refer to two such analyses. One such
paper is titled ‘Caste Panchayats and Policing of Marriage in Haryana:
Enforcing Kinship and Territorial Exogamy’ by Professor Prem Chowdhry. Professor Chowdhry is internationally
renowned academic and researcher on the circumstances and issues confronting
women in Haryana. Besides teaching at
Miranda House college for many years, she has been a senior research scholar/
fellow at the Jawahar
and Library. Currently, she works as an
independent on scholar on these issues.
It would not be unreasonable to say that ideologically Dr. Chaudhry belongs
to the camp of the feminists and modernists to whom the Khaps are
anathema. Her antipathy to these
traditional structures is amply displayed in the paper under discussion. Nevertheless, Manushi seek to rely upon her
analysis because of the valuable insights it offers and the sensible notes of
caution that strikes. A copy of her
paper is Annexure M-1 hereto.
Professor Chowdhry’s insights
and analysis may be summarized as follows:
Generalised indictments of
the social system, or injunctions and action based upon such indictments can
only exacerbate the problem.
ii. Based upon a detailed analysis of the Darshana-Ashish case, which
took place in the year 2000, the paper shows that it is misconceived to heap
generalised opprobrium upon Khaps. In
this case the Sarva Khap Panchayat, as distinct from the caste Panchayat,
exercised a moderating influence, toning down the virulence of the caste
iii. Notwithstanding her indictment of the system of caste and Khap
panchayats, Dr. Chowdhry is categorical in her assessment that generalised
intervention and/ or action against this system would be
counterproductive. She further argues
that such intervention is likely to end up undermining the legal and justice
system of the state since almost all state agencies as well as the entire
spectrum of the political classes tends to side with the traditional systems
and bodies and to validate their actions.
iv. On the other hand, Dr. Chowdhry says that the possibility of
intervention by the legal and justice systems of the country act as a strong
check upon the traditional system, as it is now always open to those
dissatisfied by the decision of the traditional bodies to seek the intercession
of the modern, state based systems of law and justice. It is pertinent to point out here that this
is consistent with the evidence compiled by the petitioner in its report for
the NCW. Appendices B, C and D to the
said report are compilations of the cases in which the Punjab
and Haryana High Court intervened at the behest of a young couple, or one of
v. Through a detailed dissection of the behaviour of the various
actors involved in the Darshana-Ashish case Dr. Chowdhry shows that the
traditional system is not a monolith.
Different elements of this system frequently take conflicting stands as
their perceptions and interests are at variance with each other. Further, Dr. Chowdhry shows that traditional
panchayats are not immune to public opinion and pressure, which can sometimes
force them to revise or even reverse their decision.
vi. Dr. Chowdhry also argues that, given the widespread support that
the traditional system enjoys, a generalised indictment of this system may end
upon polarising opinion and consolidating support in its favour. On the other hand, she argues, it is a
misconception to believe that the traditional system is impervious to
change. She illustrates her argument
with several examples of significant change, including in the various
prohibitions comprising the ‘sagotra’ rules, which have been brought about by
the panchayats and Khaps themselves.
in all, whatever be her personal views, Dr. Chowdhry paints a picture of
communities, who may appear to be “regressive and hidebound in certain matters
to the outside world, but are actually moving with the times in noticeable
ways. She warns against the tendency of
treating them as inhuman or monstrous.
She suggests a policy of active engagement coupled with vigorous interventions
by the state agencies, including the judiciary, when called upon to do so.
That Dr. Chowdhry’s views
find very precise and pertinent echoes in a paper by a young academic from the UK, Dr. Aisha Gill, lecturer at the University of Roehampton,
London. In a 2006 paper titled “Patriarchal Violence
in the Name of Honour”. Dr.Gill suggests
that mainstream public perception of ethnic minority groups is influenced and
even engendered by media reporting of honour crimes. She goes on to say that such reporting often
paints ethnic minorities as “regressive and backward, and somehow morally
inferior”. She argues for a more refined
understanding of the relationship between culture and morality, and for a more
nuanced approach to the construction of a human rights framework.
That Dr. Gill says that the
characterisation of the issue of violence against women in the name of honour,
including on BBC television and radio, as being indicative of a “culture clash
crisis” amongst youth, amounts to presenting a “narrow vision” of the
incidents, and “of what it means to be a member of an ethnic minority in
today’s multicultural Britain”. She argues
that framing the ‘problem’ in this way does injustice to the people whose cause
the media purports to support as such characterisation fails to recognise “the
agency such youth have within the structures of everyday life”. Furthermore, she argues, “the voices of youth
seem to have been marginalised within these (media) discourses”.
That Dr. Gill argues that
British public opinion seizes upon the media portrayal of family honour
killings to consolidate the image of the barbaric and primitive “Asian Other”,
and use these images to “underwrite a sense of superiority, and legitimate the
practice of treating minorities as inferior”.
She suggests that there is need to question the negative stereotypes (of
Asians and minorities) that the media perpetuates.
That citing various papers and texts Dr. Gill
argues that “the patronising attitudes of some … western feminists have sown
the seeds of mainstream racism towards
diasporic South Asian communities”. She
states that postcolonial feminists reject such stereotypes.
That calling for the
development of a “more refined perspective”, Dr. Gill points out how difficult
it is to reconcile “changing dynamics of community and culture … with
homogeneous legal concepts, nation-building agendas, and disagreements over
what constitute rights …” She cites other scholars to suggest that “human
rights and the law cannot easily be made concrete in the context of a fluid
understanding of culture and community”.
That Dr. Gill, further,
argues that ‘the deployment of ‘culture’ in the legal context generally allows
for only one perspective, usually that belonging to the claimant, which
singularity of perspective is frequently unfair in representing the interests
of others who have just as much, if not more, at stake’. She asserts that “This is particularly
evident in domestic violence cases”, and refers to cases in British courts,
where ‘cultural’ defence arguments have been evoked.
That pointing to the high
degree of difficulty in reconciling the tension between culture (community) and
individual rights, Dr. Gill states that even as she places her paper “firmly
within the human rights paradigm”, she is compelled to be critical of the
rights discourse in relation to minority ethnic women. She asserts that while international
standards are important to apply in terms of the rights of women, this does not
mean that such standards should be blind to the context in which they are to be
That Dr. Gill, In conclusion, states that
“Providing mechanisms for vulnerable internal minorities to voice their
opposition to cultural rules and practices that reinforce their vulnerability
can help facilitate the contestation of cultural practices within minority
communities”. She argues, much like Dr.
Chowdhry, that “Defenders of existing hierarchies may be compelled to change
their views” as a result of such support.
She adds that “maintaining rules and practices that disproportionately
burden or exclude particular members may not,
in the long run,
be a recipe
for cultural survival”.
A copy of Dr. Gill’s paper is Annexure M-2 hereto. It is a sad
commentary on our self-appointed social reformers like Shakti Vahini that they
are using means and methods typical of racist regimes and reinforcing the
negative stereotypes regarding fellow Indians in the national and international
media. That these stereotypes are based on phoney studies and gibberish data
makes the exercise all the more sinister.
That thankfully, the Amici
have refrained from supporting the call for a new law specifically targeting
Khaps but they too betray their pre-judgement and complete lack of
understanding of either Khaps or the ground reality of community life in rural
areas. Thus, even as their ‘revised
recommendations’ make it conclusively clear that there is no need whatsoever
for a new law, at the same time they read like a reprise of the draft bill
proposed by the Law Commission. Be that
as it may, Manushi Sangathan has no objection to these recommendations to the
extent that they suggest measures to protect persons who are under threat of
assault or violence from any quarter.
However, it is respectfully submitted that this court should make
certain that the suggestions directed at the Khaps do not become the basis for
witch hunts and hounding of respectable citizens, albeit orthodox in their
views on marriage.
That in the context of the
near universal vilification of Khaps in the present proceedings, finally, it is
pertinent to place a few facts about them on the record. A Khap is not an institution or an NGO, as it
is repeatedly made out to be by its critics. It is an age old institution for grass root democracy and self-governance
based on community practices that go back several millennia. In most traditional societies leaders who
display patience and conciliatory capacities to elicit consensus or something
close to it are the most prized and respected persons. Khap leaders are known to sit for days and
even weeks on end without a break when a tricky issue is at hand and consensus
not easy to reach. Captain Dalal and Sunil Jaglan ( whose submissions are
before this Hon’ble Court)
are two among several living examples of that.
Many of the present day
problems of Khaps have arisen due to the encroachment of electoral politics
which is playing a very divisive role in both rural and urban India due to
vote bank politics with its partisan agendas. In such a situation, the importance
of consensus building nonpartisan bodies like Khaps becomes all the more
important because they are meant to be instruments for resolving conflicts and
people’s right to self-management at all levels--familial, community and
Further, bhaichara is not a fictional or emotional or irrational or harmful
concept, as is sought to be made out in the petition, the report to the NCW as
well as in the Law Commission’s report.
This moral universe provides valuable source of economic, social and emotional
support to its members. Communities and families that rest on agriculture as a
mode of subsistence cannot do without mutual dependence, cooperation and
brotherhood relations for economic advancement and maintaining social peace. Mahatma Gandhi’s conception of “swaraj” was
based on reviving these age old intuitions of self-governance which made India a land of
“self-governing village republics.” Several eminent historians have described
their role in very positive terms. This
evidence can be presented before this Hon’ble court if we are given permission
to do so. In the debates of Constituent Assembly those who believed in Mahatma
Gandhi’s vision of “swaraj”, argued passionately in favour of restoring the
power of such village bodies which had been snatched away during colonial rule.
The enactment of 73rd and 74th Amendments to the Constitution was a
belated recognition that in order to deepen our democracy we need to empower
village communities. On the one hand, the government talks of giving powers to
gram sabhas, on the other hand moves are afoot to destroy the very culture of
community participation and collective decision making kept alive by intra
village, intra community Khaps. A vibrant civil society needs vibrant
institutions outside government tutelage. Their
autonomy must be respected as long as they do not break the laws of the land
and do not violate fundamental rights guaranteed in the Constitution of India. It
is matter of concern that NGO’s are today claiming to be “civil society organizations
(CSOs)” without having roots in civil society. What is worse, they are doing
all they can to destroy the real, indigenous civil society organizations by
launching misinformation and hate campaigns against the latter.
It needs reiteration that ‘Khap’
is a name given in a particular region to a universally respected
social/community practice of self-governance, to deliberate and resolve issues
at hand when those directly concerned – be they individuals, families or
village or caste communities---are unable to amicably resolve on their own and
therefore need the help of community elders whose moral authority rests on
their being nonpartisan and fair minded.
They neither have money power nor official clout to enforce their
diktats. It is democratic in practice and has in-built mechanisms for
self-correction. The stress is
invariably on resolving the issues by consensus and consent; coercion is never
practiced and the maximum “punishment”, in case of habitual offenders, is the
withdrawal of relationship to bring social pressure for reform. This is how
several Khaps have tried to curb exorbitant dowry and marriage expenses as well
as curbing liquor and drug menace. Some of them are doing outstanding work as
is evident from the submissions of Dalal Khap and Sunil Jaglan Sarpanch Bibipur
panchayat. Modern day NGO’s, most of who
are set up with the support of international donor agencies and cannot survive
without government or donor agency grants—rarely, if ever enjoy the moral clout
of traditional community organizations. This is perhaps the reason for NGO’s
hostility to genuine community based organizations.
Further, the present
petition, and other briefs and reports before the court remind repeatedly of
Article (3) of the ICCPR that stipulates ‘no marriage shall be entered into
without the free and full consent of the intending spouses’. However, no one
has considered it fit to mention Article 23, part (1) of the same convention,
which says that ‘the family is the natural and fundamental group unit of
society and is entitled to protection by society and the state’. The Khap is first and foremost a community
practice devised to act like an umbrella, and to protect, nurture and sustain
the institution of the ‘family’ in time of need.
That accusing Khap or jati Panchayats of being
unconstitutional bodies betrays a fundamental lack of understanding about the
nature of the fundamental right to association.
Association can be on the basis of neighbourhood ties, occupation, region,
language, gender, jati, caste or any other basis of voluntary association. Thus resident welfare associations, chambers
of commerce, teachers’ unions, caste associations, Tamil or Marathi Writers’
associations, weavers association, or bodies based on religious affiliation
such as the Arya Samaj, Milli Council, etc are all protected by the fundamental
right to association granted to every citizen of India.
That Khaps, like jati-biradari Panchayats are voluntary
associations of people who share a common culture, a common history and moral
bodies have shown their ability to move with changing times, as evident from
Sunil Jaglan’s submissions. Membership to these bodies is neither compulsory nor
mandatory. No one is ever forced to
become a member of such bodies. Plenty of people of this region have gone in
for inter caste, inter religious and even trans-national marriages without
facing any persecution simply because their families accepted those
unions. In many instances with
increasing social mobility, these ties get weakened and people move away from
them as they forge newer social ties and newer forms of association. However, in some cases these voluntary
associations survive. How well they
survive invariably depends on whether members see them as performing a useful
role for the community and whether membership of such bodies carries any
advantage or not. Thus, Patels
(including many sub groups within the Patels) retain close ties with their biradari associations even when they
migrate far away their homeland in Gujarat. Today, Patels in the US are connected not only by their
caste, linguistic and regional cultural
affinities but also emerged as a vibrant
business community on the basis of these bonds.
Their close-knit ties have helped them establish a virtual monopoly over
the motel business in America. Each new migrant to the US can count on the supportive social, cultural
and economic network that Patels have built in the US,
as they have in Gujarat. The same is true of Punjab’s Jats in North America.
That not just with the
Patels, in most instances such jati -
biradari associations play a positive role and offer better social security
to vulnerable members of the group than anything offered by the modern state
machinery anywhere in the world. They
set up scholarship funds for children of poor caste brethren build schools,
hostels, colleges, help find jobs and assist each other in accessing new social
opportunities. It is pertinent to note
that the spread of “modern” education in India as well as the rise of large
numbers of organisations devoted to strengthening women’s rights, as part of 19th
century social reform movements, were both intimately connected to community
and caste based mobilisations.
That it needs to be pointed
out that the Jat community in Haryana consists of small and marginal farmers
and not landlords of feudal vintage. The petitioner needs to refresh itself
about the meaning of the word ‘feudal’. In Haryana and Western UP, almost all
farmers work on their own land even while they may use farm labour for certain
agricultural operations. In 2005-06, the average land holding size of Haryana
farms was about 2.23 hectares; 40% of land holdings in Haryana were between 0.5
to 2 hectares and 28% below 0.5 hectares. It has declined further due to
fragmentation on account of division among siblings as they get married and set
up their own establishments. This area does not have a tradition of feudal
lords. That is why one sees sons of impoverished
Haryana farmers migrate to cities to work as bus drivers/conductors, police
constables or take on other low paying occupations. The petitioner’s report to
the NCW is ill informed and substitutes borrowed and erroneous rhetoric for
elementary facts when as evident in remarks that Jats are “feudal” or that they
“are facing a crisis of identity after being reduced to small holdings.”
Whether their holdings were small or big, Jats have always been peasant
proprietors, not vassals of any feudal lord.
It is respectfully submitted that such ill-informed prejudice against
Jats and their practice in Khap is politically motivated and likely to assist
those forces that are behind major land acquisition drives in Haryana and
Western UP. These community organizations play a vital role in resisting illegal
takeover of farm lands or dubious land deals made by politicians who are into
real estate business. The petitioner organization as well as other NGO’s
demanding a ban on Khaps, knowingly or unwittingly, are playing into the hands
of such forces. The space vacated by the indigenous civil society organizations is
invariably taken over by anti-social elements that thrive in situations where
community watch is weakened. Rootless NGOs playing to international galleries
also thrive in such a situation.
It is respectfully submitted
that Khap representatives, including Manushi Sangathan be given a full hearing
before any orders are passed.
It is further submitted that
the present petition deserves to be dismissed, with costs.
the above named deponent, do hereby verify that the contents of the foregoing
affidavit are true and correct to the best of my knowledge and belief and, the
legal submissions made therein are based on the advice of the counsel, which I
believe to be true and, nothing material has been concealed therefrom.
at New Delhi on
this 22nd day of February 2013
Posted on September 21, 2013