Dr Ram Manohar Lohiya National

Law University, Lucknow

Khap Panchayats: A case of morality Taking
the Law into its own hands?

Submitted To:
Submitted By:
Mrs. Mrinalini
Law and Morality
Seminar Paper

Devraj Singh
B.A LL.B (Hons.) IXth Semester
Section - A

Roll No: 49

Introduction
It is evident that both law and morality serve to channel our behavior. Law accomplishes this
primarily through the threat of sanctions if we disobey legal rules. Morality too involves
incentives: had acts may result in guilt and disapprobation, and good acts may result in
virtuous feelings and praise.
Law means the body of rules that we term legal, that is, the rules that are determined and
enforced by the state and that are intended to channel behavior and to resolve certain adverse
events. Thus, a legal rule might forbid littering in the park and impose a $50 fine for a
violation, might impose expectation damages for breach of contract or might declare murder
a crime and punish it with a sentence of at least ten years of imprisonment.
Morality refers to rules of conduct that are associated with certain distinctive psychological
and social attributes. In particular, a moral rule has the property that when a person obeys the
rule, he will tend to feel the sentiment known as virtue and if he disobeys the rule, he will
tend to feel the sentiment known as guilt. A moral rule also has the property that when a
person obeys the rule and is observed to have done so by another party, that party may
bestow praise on the first party who will enjoy the praise: and if the person disobeys the rule
and is observed to have done so by another party, the second party will tend to disapprove of
the first party, who will dislike the disapproval.
The Panchayati Raj System was introduced in India with the aim of decentralization and
democratization. However, Khap or caste panchayats wield much more power than these
statutory panchayats in states like Haryana and order harsh punitive measures against couples
who marry within the gotra. Even powerful politicians do not dare invoke the law against
them. These self proclaimed courts of caste lords in a village enjoy full legitimacy and
authority among the sections of their caste as the The Custodians of Honour. These earlier
days credible bodies have now turned political. It is through them that the most regressive
social views are sought to be implemented.1

11

. Article by Kavita, Kachhwaha Khap Adjudication in India: Honoring the Culture with Crime accessed
<On http://www.sascv.org/ijcjs/pdfs/kavitaijcjs2011i&iind.pdf> last accessed 25th August, 2013

Pursuant to the discussion in the Parliament on a Calling Attention Motion and the assurance
given by the then Union Home Minister that various aspects relating to honour killings will
be examined, a reference was made to the Law Commission of India by the Ministry of Law
and Justice in September 2009.
In India honour killings are mostly reported from the States of Haryana, Punjab, Rajasthan
and U.P. Bhagalpur in Bihar is also one of the known places for honour killings. Even
some incidents are reported from Delhi and Tamil Nadu.
Sections of Indian society and the media have for some time been demanding that these
panchayats, modern-day avatars of traditional social assemblies in rural north-western India
that were primarily engaged in resolving disputes and ensuring adherence to custom, be
restrained.
Characteristically, the government has chosen to treat the issue as a law and order problem,
rather than seeking to understand how and why khaps and their decision-making powers
came into being and have continued to persist, which would have made handling the issue in
a more prudent manner possible. The untrammelled power that the khap panchayats wield
without any legal basis to it, the obstructionist and dogmatic attitude of people at large in
villages, the shocking inaction of the police, the reluctance of the state government to catch
the proverbial bull by the horns shows that India still has a long way to go to solve the
problem.2
Thus, we see that these khaps have a long standing history with the people whose lives they
try to regulate. We also see that the problem of honour crimes is not endemic to our country
and occurs over the world but mostly in migrant communities in developed countries. As
such the difference can be attributed to the mindset and awareness of the people of our
country and as such work is needed on the above two aspects. The definition of what is
morally right and wrong for people needs to be changed. Apart from legislation to effectively
curb honour related crimes, it is equally important that the steps should be taken to organize
counseling programmes for the village communities, for instance to explain to them that
sagotra marriages are not opposed to law, religion sadachar or medical science.

Khaps Call the Shots, Tough Steps Needed to Stop Honour Killings, The Tribune, 13 August 2009

Statement of Problem
The rising incidence of commission of murders of persons marrying outside their caste or
religion and other serious offences perpetrated or hostility generated against them and also
causing harm to their close relatives or a section of the community on considerations of caste
and 'gotra are matters of grave concern. The reason for these crimes is that the people
committing these crimes choose to uphold their morals over the law. Those who may be
directly involved in the actual commission of acts of violence or murder are either part of a
community or section of the people and may also include members of the family concerned
in the case of objected marriages. Very often such incidents and offences are not even taken
cognizance at the threshold.
The intervention of caste/community assemblies in the name of 'Khap Panchayats, Katta
Panchayats etc. in the occurrence of these offences and other related incidents involving
serious life and liberty consequences, are frequently noticed. These bodies consider
themselves to be the upholders of the morality of the society and as such act as moral
police doling out punishments according to their own sense of what is morally right and
what is morally wrong. Such assemblies gathered on caste/community lines assume to
themselves the power and authority to declare on and deal with 'objectionable' matrimonies
and exhibit least regard for life and liberty and are not deterred by the processes of
administration of justice. The Indian penal law (IPC) lacks direct application to the illegal
acts of such caste assemblies.
The pernicious practice of Khap Panchayats and the like taking law into their own hands and
pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages and
handing over punishment to the couple and pressurizing the family members to execute their
verdict by any means amounts to flagrant violation of rule of law and invasion of personal
liberty of the Persons affected.

The Hindu Marriage Act does not prohibit

sagotra or inter-caste marriages.

The views of village elders or family elders cannot be forced on the willing couple and no
one has a right to use force or impose far-reaching sanctions in the name of vindicating
community honour or morality. There are reports that drastic action including wrongful
confinement, persistent harassment, mental torture, infliction of or threats of severe bodily
harm is resorted to either by close relations or some third parties against the so-called erring
couple either on the exhortations of some or all the Panchayatdars. Several instances of
murder of one or the other couple have been in the news. Social boycotts and other illegal
sanctions affecting the young couple, the families and even a section of local inhabitants are
quite often resorted to. All this is done in the name of tradition and honour. Numerous cases
have come up in the recent times. For illustration:
Self proclaimed Judges put oil in a pot and boil it. A coin is placed into it. The accused is
asked to take out the coin from the boiling oil. He/she is considered innocent if managed to
do so. This is Dheej custom3.
An iron stick is heated red hot. The palms of the accused are smeared with turmeric and
seven leaves of Peepal are tied on them by a weak thread. The red hot stick is kept on it and
the accused is asked to walk seven steps carrying the stick in his hands. If the palms do not
burn he/she is presumed innocent.4
The guilt of a woman is judged by forcing her to fry Puris bare handed in the boiling oil in
the cauldron. If her hands burn, she is declared guilty.5
Many a times, barbaric ways are adopted. Either ear or nose of the accused is chopped off.
Sometimes his hair is cut, face is polished black and he is made to ride over donkey in the
whole village or is forced to run naked and bare footed6.

HYPOTHESIS

Kanuni daanvpencho ke dar se kayam aadivasi adaalate. (1999, January 15). Dainik Bhaskar, Jodhpur Edition
Kalyug mei di sita ne agni pariksha. (2002, July 8). Dainik Bhaskar, Jodhpur Edition
5
Ve har saal deti hai agni pariksha. (2002, October 17). Dainik Bhaskar, Jodhpur Edition
6
Jati pancho se aatankit vyakti ki sp se guhar. (2000, May 24). Dainik Bhaskar, Jodhpur Edition
4

The khap panchayats and honour crimes are the result of the people choosing to allow
themselves to be guided by rules of morality in complete ignorance to the rules established by
law.

Scope of Research
My paper would focus with the problem of Crimes of Honour perpetrated by Khap
Panchayats in India. It will then try to examine the problem for the view of the morality-law
divide. Finally the paper will deal with how to solve this divide and stop this problem for
good. For this purpose I will be referring to articles, the Supreme Courts verdict on various
occasions and Justice Verma committee report on the issue.

Literature Review
From the article Law versus Morality as Regulators of Conduct7 one is able to discern as
pointed out by the author that both law and morality serve to channel our behavior. Law
accomplishes this primarily through the threat of sanctions if we disobey legal rules. Morality
too achieves this objective but it acts through incentives. Bad acts may result in guilt and
disapprobation, and good acts may result in virtuous feelings and praise. This may be external
i.e. an individual may be commended or shunned by the society for his moral and immoral
acts respectively. Similarly he may feel proud or guilty by himself for his moral or immoral
acts. In case of Khap panchayats it is the society which is shunning the concerned individuals
for not confirming to morality.
From the meetings of the Journal of the Royal Society of Arts 8, I have been able to discern
the History of the Panchayat system in India and deduce their functioning at various times in
history.

Steven Shavell, Law versus Morality as Regulators of Conduct American Law and Economnics Review V4
N2 2002 (227.257)
8
Journal of the Royal Society of Arts, Vol. 85, No. 4399 (MARCH 12th, 1937), pp. 385-401

In the Vedas the village is portrayed as a semi- independent republic governing itself through
a Sabha or assembly.9
The effect of Muhamedan rule, especially where it was well organised, was to enfeeble the
village communities and arrest their development, and the process was hastened by the
oppressive character of the revenue system during its later stages and by the disturbed times
which preceded the advent of the British, so that when British rule began in Northern India
there was very little trace of village councils or even of village headmen.
The panchayat was retained for the decision of disputes between persons of one caste or of
one trade, being convened by the mukhiya in the one case and the chaudhri in the other, and
that in villages which belonged wholly or chiefly to one caste the panchayat had considerable
influence over village affairs in general. The Settlement Officer of Muttra wrote in 1879
that " the panchayat exists in the Jat bhaiyachara villages in great perfection," and
Darling, in his Wisdom and Waste in the Panjabi cites a number of recent examples of
non-official panchayats , not composed entirely of the dominant class of the village but
representative of all the inhabitants, raising money for various purposes - the purchase
of a share in the village, the deepening of a tank, the building of a chaupal, the paving of
the lanes and even their maintenance in a sanitary condition.
In the Mahratta and Rajput States of Central and Western India village communities
were much stronger. Here the village headman had considerable authority, and when a
dispute or complaint was brought to the notice of a government official or of the
headman himself, the usual procedure was to refer it to a panchayat, the decisions of
which were duly enforced by the local officials.
In 18 16 Sir Thomas Monro, who had been sent out to Madras by the Directors of the East
India Company with instructions for the reform of the judicial system, induced the
government to make panchayats an integral portion thereof, but in a memorandum of 1824,
when Governor of Madras, he records that there was so much feeling against the
panchayat both at home and in India, on the ground that it might become an
instrument of abuse, that it was placed under such restrictions as to deprive it of all utility ;
and he recorded the view that neither party should have the option of declining its jurisdiction. He also recommended that criminal cases should be tried with the aid of a jury or

Journal of the Royal Society of Arts, Vol. 91, No. 4631 (JANUARY 22nd, 1943), pp.94-108

Panchayats. Sir John Malcolm, in his memorandum on Central India, written in 1832, gave a
detailed description of the working of Panchayats both in the Rajput and Mahratta States, and
recommended that both criminal and civil cases of minor importance should be tried by
Panchayats.
Thus, from this I have concluded that Khap Panchayats wield so much authority because e of
their long standing in the lives of the Indian people.
These Panchayats did not lose their significance both under the Mughals or the English and
as such have became rooted in the lives of the people and their lives intertwined with these
informal Panchayats even more than those provided for constitutionally. Also that even in
those days there was fear that these Panchayats may become an instruments of abuse and as
such their development was restricted. These fears are now only being realized and now that
we have allowed them to grow unhindered.
From the article Khap Panchayats: A Socio-Historical Overview10 the reasons behind this
interference by these caste Panchayats become clear:
The expectation that customary conjugal rules and regulations will be upheld is common to
all castes and communities in India. Women who produced legitimate heirs were essential to
caste and gotra-based societies and restrictions were imposed on them to control their
sexuality and reproduction. To maintain familial rights over property, keep property within a
particular caste, and reproduce the production relations that had been established on the basis
of the caste system, rules and customs related to marriage were not only promulgated, but
also strictly enforced. Those who violated them were punished by Biradari Panchayats
(informal caste councils) that had members of only one caste or Khap Panchayats, which
were usually better organised and more powerful.
In the Jat community, inter-caste marriages were, and still are, not permitted and the degree
of punishment varies for those who do so. For, marriages of Jat women to lower-caste men
would elevate the social status of the lower caste, coming in the way of continuing castebased exploitation in agrarian relations. This concern is reflected in the Jat saying Yeh dhed
mahre jamai ban jiyange. Mhari gelya khat pe bethiya karenge (These dalits will become our

10

Ajay Kumar, Khap Panchayats: A Socio-Historical Overview, Economic & Political Weekly, January 28,
2012 VOL XLVII NO 4

sons-in-law. They will sit with us on our charpais [string cots] as equals). Here, being
compelled to treat dalit relatives as equals makes no social or economic sense.
Another reason for the prohibition on inter-caste marriages could be the fear that Jat women
married to lower-caste men could claim a right to inherited property under the Hindu
Marriage Act, 1955, and Hindu Succession Act, 1956, which recognise the legal rights of
daughters to ancestral property. In this case, the property of Jat womens families would be
accessible to members of their husbands lower-caste families, giving them an equal status
both socially and economically. The marriage of Jat men from minority gotras in a village or
locality to women from dominant and majority Jat gotras in other villages is also opposed. A
majority gotra administers a village and owns most of its land, always treating tenants and
craftsmen who come from outside as its inferiors. If men from a minority gotra marry women
from a majority gotra elsewhere, it could raise their social standing, even taking some shine
off the prestige and status of chaudhris in their village.
Thus, we see that the reasons for these problems ultimately stem from the insecurity of a
section of the society fearing loss of their socio-economic dominant position.
From the article 'Crimes of Honour11' in India and Pakistan we see that the problem is not
restricted to India and many countries like Pakistan deal with the same problem.
What then is the relationship between these newly empowered gram (village) panchayats and
the traditional, informal caste Panchayats, and how does the state negotiate between the two?
It is often found that not only are individual members of the two panchayats from the same
family, but that, as public bodies, gram panchayats are supportive of the caste panchayat
pronouncements of excommunication and even murder. Similar religious and class-based
exclusions are practised in Pakistan. Thus, what seems to occur here is the constant and
complex negotiation of decentralised state structures with hegemonic informal governance
structures that maintain a stable social geography
The report of the Special Rapporteur to U.N. of the year 2002 concerning cultural practices in
the family that are violent towards women came to the same conclusions.

11

Pratiksha Baxi, Shirin M. Rai and Shaheen Sardar Ali, 'Crimes of Honour' in India and Pakistan,
Third World Quarterly, Vol. 27, No. 7, The Politics of Rights: Dilemmas for Feminist Praxis (2006), pp. 12391253

But we see that despite orders of the courts, the State Government sand police have often
feigned their inability to take actions against these panchayats because of the support of
various politicians and governments to them.
At the local level, where the tragic stories of opposition to romantic love take legal form, we
find state officers such as the Inspector-General of Police, Rohtak, Haryana emphasising that
'caste played an important role in village life'. He did not think 'that the state had any business
meddling in their [caste panchayats'] activities, for democracy "essentially means minimal
state intervention"'.12
There is no specific law in India dealing with this horrific and frightening act of honour
killing and any punishment regarding the same. The law treats honour killing as homicide
and murder under the provision of Indian penal code 1860. The honour crime also violates
article 14, 15(1) and 15(3), 19, 21 and 39(f) of Constitution of India. It is against various
international commitments of India. It is against the spirit of the UDHR and ICCPR.
Shamefully, even today there is no legal definition of honour crimes in India. In India Penal
code penalties for such crime find ground in section 299-304, 307, 30 ,120A and ,B ,107106, 34 and 35. However a huge number of people get away with murder, torture and
violation of laws and they continue to commit them without impurity. Strangely, the National
Crime Record Bureau does not collect separate data on honour killing.

The PROHIBITION OF INTERFERENCE WITH THE FREEDOM OF MATRIMONIAL

ALLIANCES BILL intends to append a new clause to Section 300 of the IPC. It also intends
to amend the Indian Evidence Act and the Special Marriages Act, 1954, which would
eliminate the provision for the mandatory 30day notice period for marriages, intended to be
solemnized under the Act. The new bill is also expected to introduce a definition of honour
killing for treating it punishable offence.
Thus, we see that these Khap panchayats which dole out their system of Honour Justice are
long time cherished institutions which have now turned nefarious as a result of the need of
the few influential to maintain their influence over the rest not so privileged. This problem is
not restricted to India but has assumed global proportions because of the misplaced sense of
honour amongst the migrant communities abroad. In India they continue to flourish under
12

U Chakravarti, 'From fathers to husbands: of love, death and marriage in north India', in L Welchman & S
Hossain (eds), 'Honour'. Crimes, Paradigms and Violence against Women, London: Zed Books, 2005, pp 308331

political patronage and because the police and other authorities refuse to intervene in the
name of maintenance of social harmony and order and as such a mere amendment to Section
300 IPC would not be an effective solution to the problem as it would only entail cases
involving murder under its ambit whereas the majority of cases would go unpunished.
The need is of a comprehensive law to be framed to cover all instances of such honour crimes
and for it to be implemented with an iron hand to end this menace once and for all.

Limitations of Research
The limitations of this paper are that I would not dwell in detail on the situation in other
countries and provide a comparison. I will try and restrict/limit the scope as far as practicable
to the Indian context and problem.

Tentative Conclusion
The autonomy of every person in matters concerning one is principle of paramount
importance. A free and willing creator of one's own choices and decisions is now central to
all thinking on community order and organization. Needless to emphasize that such
autonomy with its manifold dimensions is a constitutionally protected value and is central to
an open society and civilized order.
The existing provisions in IPC are adequate enough to take care of the situations leading to
overt acts of killing or causing bodily harm to the targeted person who allegedly undermined
the honour of the caste or community. The motive behind killing a person does not furnish
real justification to introduce a separate provision in section 300, as is contemplated to be
done under the proposed Government's Bill (as published in the newspapers). Probably, the
addition of such clause may create avoidable confusion and interpretational difficulties.

In order to keep a check on the high-handed and unwarranted interference by the caste
assemblies or panchayats with sagotra, inter-caste or inter-religious marriages, which are
otherwise lawful, this legislation has been proposed so as to prevent the acts endangering the
liberty of the couple married or intending to marry and their family members. It is considered
necessary that there should be a threshold bar against the congregation or assembly for the
purpose of disapproving such marriage / intended marriage and the conduct of the young
couple. The members gathering for such a purpose i.e., for condemning the marriage with a
view to take necessary consequential action, are to be treated as members of unlawful
assembly for which a mandatory minimum punishment has been prescribed.

Tentative Bibliography
Khaps Call the Shots, Tough Steps Needed to Stop Honour Killings, The Tribune,
13 August 2009
Prem Chowdhry, Enforcing Cultural Codes Gender and Violence in Northern India,
Economic and Political Weekly May 10, 1997
Pratiksha Baxi, Shirin M. Rai and Shaheen Sardar Ali, 'Crimes of Honour' in India
and Pakistan, Third World Quarterly, Vol. 27, No. 7, The Politics of Rights:
Dilemmas for Feminist Praxis (2006), pp. 1239-1253
Ajay Kumar, Khap Panchayats: A Socio-Historical Overview, Economic &
Political Weekly January 28, 2012 VOL XLVII NO 4
Journal of the Royal Society of Arts, Vol. 91, No. 4631 (JANUARY 22nd, 1943),
pp.94-108
Journal of the Royal Society of Arts, Vol. 85, No. 4399 (MARCH 12th, 1937), pp.
385-401
Kavita, Kachhwaha Khap Adjudication in India: Honoring the Culture with Crime
accessed<On http://www.sascv.org/ijcjs/pdfs/kavitaijcjs2011i&iind.pdf> last accessed
25th August, 2013
Justice Verma Committee Report, Report of the Committee on Amendments to
Criminal Law
Law commission of India, Report no. 242

 Bhupendra Yadav, Khap Panchayats: Stealing Freedom?, Economic & Political

Weekly DECEMBER 26, 2009 VOL XLIV NO 52