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 Constitution.

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.

However, on 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 killings.

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

Vs.

Union of India and Ors.                                      … Respondents

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. 

2.   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.

3.   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 court permits. 

4.   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. 

5.   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:

i.        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 Khaps.

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.    

8.       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 crime. 

9.       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 case.

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.

i.        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.

viii.           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 orders”. 

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.

xiii.           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 association.

11.         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.

12.         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. 

13.          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. 

14.         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.

15.          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.

16.          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. 

17.         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. 

18.         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. 

19.         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?

20.         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. 

21.         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.   

22.         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. 

23.         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. 

24.         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 State officials.”

25.         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. 

26.         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.

27.         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.

28.         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 Lal Nehru Memorial Museum 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:

i.        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 panchayat’s verdict. 

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 them. 

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. 

vii.        All 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. 

 

29.        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.

30.        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”.

31.        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.

32.         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.

33.        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”.

34.        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.

35.        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 applied.

36.         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.

37.        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.

38.        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.

39.        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 social. 

40.        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 74^th 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.

41.        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.

42.        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.

43.        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. 

44.        That Khaps, like jati-biradari Panchayats are voluntary associations of people who share a common culture, a common history and moral values.  These 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.

45.        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 19^th century social reform movements, were both intimately connected to community and caste based mobilisations.

46.        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.

47.        It is respectfully submitted that Khap representatives, including Manushi Sangathan be given a full hearing before any orders are passed.

48.        It is further submitted that the present petition deserves to be dismissed, with costs.

 

Deponent

Verification

I, 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.

Verified at New Delhi on this 22^nd day of February 2013

 

Deponent