TITLE:- ROLE OF CASTE PANCHAYATS IN JUSTICE ADMINISTRATION Submitted by ANIRUDH MEHROTRA

Division A Roll No 50 Class B.B.A L.L.B of Symbiosis Law School, NOIDA Symbiosis International University, PUNE In SEPTEMBER, 2011

Under the guidance of DR. MOHAMMAD SALIM Course in charge, JURISPRUDENCE Symbiosis law school, Noida - 201301

CERTIFICATE

The project entitled ROLE OF CASTE PANCHAYATS IN JUSTICE ADMINISTRATION submitted to the Symbiosis Law School, NOIDA for Law of Contract as part of Internal assessment is based on my original work carried out under the guidance of DR. MOHAMMAD SALIM from 2011 To 2016. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate:ANIRUDH MEHROTRA

DATE: 21st September, 2011

ACKNOWLEDGEMENT
It is a great pleasure for me to put on records my appreciation and gratitude towards Dr. Md.

Salim, Director in charge for jurisprudence for his immense support and encouragement all through the preparation of this report and also for his valuable support and suggestions for the improvement and editing of this project report. Last but not the least, I would like to thank all the friends and others who directly or indirectly helped me in completing my project report. the library facilities and computer facilities of the University have been indispensable.

INDEX
PAGE PAGE PAGE PAGE PAGE PAGE PAGE PAGE PAGE PAGE PAGE 1 : TITLE PAGE ( APPENDIX A ) 2 : CERTIFICATE ( APPENDIX B ) 3 : ACKNOWLEDGEMENT 5 : INTRODUCTION 6 :DEFENSE OF CASTE PANCHAYATS 6 : ADVANTAGES OF CASTE PANCHAYATS 7 : DISADVANTAGES OF CASTE PANCHAYATS 8 : CASTE PANCHAYATS : A CURSE ON INDIAN SOCIETY 10 : SOME CASES RELATED TO CASTE PANCHAYATS 14 : CONCLUSION 15 : BIBLIOGRAPHY

INTRODUCTION
Caste panchayats or khap panchayats form a cluster of villages united by caste and geography. It was started in 14th century by upper caste jats to consolidate their position in the society. Caste panchayats govern the khap formed by the same gotra(clan) from several neighbouring villages. Caste panchayats are prevalent in Haryana, western Uttar Pradesh and parts of Rajasthan. Love marriages are considered to be a taboo in villages governed by caste panchayats. The basic rule of caste panchayats is that all boys and girls within a khap are considered to be siblings. Those living in khap are not allowed to marry in same gotra or even in any gotra from same village. Many young couples have been killed in the past defying the laws of caste panchayats. Caste panchayat imposes its writ through social boycotts and fines and in most cases end up either killing or forcing the victims to commit suicide. All this is done in the name of brotherhood and its honour. It is due to the inherent weakness of democratically elected Panchayati Raj Institutions that khap panchayats are powerful. Even the government has not done much to prohibit the power of these caste panchayats.

DEFENSE OF CASTE PANCHAYATS

The 10-15 men who constitute the caste panchayat, settle the disputes and control the lives of people in the villages. Many village people also defend these caste panchayats as they deliver the verdict in one sitting whereas the cases in courts drag for years. According to them many innocent people get physically and mentally harassed by the courts and police but in a caste panchayat everybody is known so they cross check everything to ensure neutrality.

ADVANTAGES OF CASTE PANCHAYATS

1) The biggest advantage of caste panchayats is that it is based on the customary laws which come from the community itself and therefore they are simple and easy to understand and interpret. Moreover, it is friendlier to the locality and community from where it has emerged. Hence, it receives better compliance from the people. 2) Customary law is less complicated than the legal and statutory laws.

3) Caste panchayats are speedier and less expensive than any formal court of law. A dispute that would take many years to get resolved in a formal court of law is resolved in one or two sittings in the traditional institutions like caste panchayats. Most of the indigenous communities have very little exposure to the modern system of judicial redress. 4) People of the community are well aware of their customary laws, therefore, it is easy for the people to approach their traditional institution (caste panchayat) for the administration of justice. 5) Cases in the caste panchayats are decided keeping in mind the needs of the society and the needs of the victim and the capacity of the accused to withstand justice. A very fine example of speedy and flexible redressal under customary law can be found in the Nishi case from Arunachal Pradesh, India. The village headmen had constituted a volunteer force to monitor any illegal activities in the community forest. The village volunteer force cleared a 5-meter strip to demarcate forest area. A contractor from another village had been warned earlier on account of his violation of rules. He sent his labour force to harvest cane from this part of the unclassed state forest. The volunteer committee beat up the labourers and seized their tools and cane.

DISADVANTAGES OF KHAP PANCHAYATS

i. The biggest problem that customary law faces is that it is region specific and so there exist multiple laws that might overlap. There may be a customary law in one community, which could be different from that of another community in the same or neighbouring locality. In such a case how is it to be decided that which law should prevail? It is not necessary that all customary laws would be friendly with the people of the community or society. Although they have an inbuilt system of checks and balances to preserve their rich natural surroundings, there may also exist laws that may not be very practical or advisable. Caste panchayats are based on customary laws and customary law is a law by the people, the very same people also decide the disputes (most of the times). Although this may have its own advantages but there is always the danger of partiality.

ii.

iii.

iv.

v.

Caste panchayats deliver their judgements on the basis of customary laws which are largely oral and lack any documentation which often proves to be a difficulty in deciding cases in a fair manner in as per customs in many cases. With the concept of individual right as against the community right seeping in with the times, people have stopped relying on customary law. Education has also played a role in this development. With education, people have learned that customary law has little recognition in the legal system. This by no means implies that education is bad. But it is of note that there is not enough awareness amongst the youth about the value of their own customary laws nor are sufficient efforts being made at their revival.

vi.

CASTE PANCHAYATS: A CURSE ON INDIAN SOCIETY

Caste Panchayat is against the constitution which is the supreme law of the land. Justice cannot be delivered by a handful of uneducated people. All the evils of our culture or traditions should be brought to an end. Killing a person because he/she married a girl/girl of his choice is no way of delivering justice. Its inhuman and as well as against the fundamental rights of a person. If every such culture starts practicing its own way of delivering justice then it is going to be a total chaos in the society. Then, there stands no point of civilizing and organizing the society for the betterment of human development. There are a number of cases which show the hard core reality of caste panchayats. Such as :-

FEMALE INFANTICIDE
The female infanticide rate is the highest in the north India. In States of Haryana and Punjab the cases of female feticide are recorded the maximum.

The sex ratio in these regions are recorded 722(females)/1000(males). The girl child is treated as a liability compared to male child who is taken as an asset of the family. Its almost a sin in these regions to give birth to a girl child. Girl child are killed the moment they are born.

HONOUR KILLING
At least half the time, the killing are carried out with barbaric ferocity. The female victim is often raped, burned alive, stoned or beated to death, cut at the throat, decapitated, stabbed numerous times, suffocated slowly, etc. the murderer(s) do not show remorse. Instead, they experience themselves from the girls actions trying to restore their lost family honour. Many such killings are happening with regularity in Punjab, Haryana and western Uttar Pradesh. Muslims, Sikhs, and Hindus view honour and morality as a collective family matters.

FORCED MARRIAGE
A forced marriage is a marriage that is performed under duress and without the full and informed consent or free will of both parties. Being under duress includes feeling both physical and emotional pressure. Some victims of forced marriage are tricked into going to another country by their families. Victims fall prey to forced marriage through deception, abduction, coercion, fear, and inducements. A forced marriage may be between children, a child and an adult, or between adults. Forced marriages are not limited to women and girls, as boys and men are also forced to marry against their will. A forced marriage is considered to be domestic violence. Victims of forced marriages often experience physical violence, rape, abduction, torture, false imprisonment and enslavement, sexual abuse, mental and emotional abuse, and at times, murder.

SOME CASES RELATED TO CASTE PANCHAYATS

Balia v Heerji
Rajasthan High Court 13 March 1968
Criminal Appeal No. 534 of 1966. Against Order of Spl. Judl. (Railway) Magistrate, Jodhpur, D/- 14 -5 -1966 The Order of the Court was as follows : This appeal of Balia is directed against the judgment of the Special Judicial (Railway) Magistrate, Jodhpur, whereby respondent Heerji has been acquitted by the learned Magistrate of the charge under section 500 Indian Penal Code. The circumstances leading to this appeal are as follows : Mst. Pushpa, daughter of Heerji, was married to the appellant about eight years back and the 'muklawa' ceremony was performed after five years of the marriage. According to Mst. Pushpa, Balia was not potent and, therefore, in spite of the fact that on many occasions Balia tried to have sexual intercourse with her but he failed to do so, and hence Pushpa out of frustration left her husband's house and ultimately came to live with her parents.

On 24th May, 1964, it so appears that a caste panchayat was summoned to consider a charge against Heeriji that he was not willing to send his daughter Pushpa to her husband's house. Heerji was also called to meet that charge and it is said that Heerji told the panchayat that Balia was impotent. Balia then filed a complaint against Heerji in the court of the Munsiff-Magistrate, Jodhpur City, under section 500 Indian Penal Code alleging that accused maliciously propagated among the members of the caste panchayat that the complainant was impotent and therefore he deserves to be punished under section 500, Indian Penal Code. Complainant Balia when he entered the witness box stated that this allegation of the accused that he was impotent is false and that it was made with a view to defame him. In his cross-examination, however, he admitted that the accused had told this to the caste panchayat because he was informed about it by his daughter Mst. Pushpa. Another prosecution witness Shankerlal (P. W. 13) has, however, deposed that he was present in the panchayat when Heerji had made his statement before the panchayat, but he clarified that Heerji made that statement when he was asked by the panchayat to explain as to why he was not sending his daughter to her husband's house. Accused in his statement under section 342 Criminal Procedure Code admitted to have made such a statement before the panchayat, but his explanation is that he did so because he was informed by his daughter Pushpa that Balia was impotent and was not fit for woman. In his defence he examined his daughter Mst. Pushpa who has very categorically stated that Balia many a times tried to have sexual intercourse with her after her marriage but every time he failed and could not succeed in his attempt and, therefore, she took him to be impotent. The learned Magistrate, after a close scrutiny of the evidence produced by both the sides, came to the conclusion that the accused could not be found guilty under section 500 Indian Penal Code as the statement was made by the accused before the panchayat in good faith and with a view to defend the interests of his daughter and, therefore, exception 9 to section 499 Indian Penal Code is attracted to this case. This finding of the learned Magistrate is challenged ,in the present appeal. Learned counsel appearing on behalf of the appellant, relying on a Supreme Court case in Kanwar Lal v. State of Punjab, AIR 1963 SC 1317, urged that the caste panchayat had no jurisdiction to sit over in judgment about the conduct of the accused as well as the complainant and, therefore, the accused had no business to convey any information to the panchayat which was of a defamatory character, and as such he cannot take shelter under exception 9 to section 499 of the Indian Penal Code. He also argued that the panchayat was not in a position to protect the interests of the accused or his daughter and, therefore, the accused cannot be said to have communicated such a defamatory information to the panchayat in good faith and with a view to protect the interests of his daughter Pushpa. In these circumstances, according to learned counsel for the appellant, the trial court has erred in coming to the conclusion that the accused had made the imputation before the panchayat with a view to safeguard the interests of his daughter and thus he is saved by exception 9 to section 499 Indian Penal Code. Mst. Pushpa has also been examined as a defence witness and she has categorically stated that Balia in spite of repeated attempts had failed to have sexual intercourse with her. It is also in the evidence that for some time she did not disclose this weakness of her husband to anybody but ultimately she communicated this fact to her mother who conveyed it to her father. From these circumstances it is evident that the accused derived his knowledge about the impotency of the complainant from his daughter and there is nothing on the record to show that there was any good reason for the accused to have disbelieved such an information which came to him through his own daughter.

All that is required to bring a case under exception 9 to section 499 Indian Penal Code is that there should be a good faith, i..e. the imputation must have been made by the accused after due care and attention and the motive behind it was to safeguard the interests of the daughter and not to defame the complainant. I find that both these elements were present when Heerji made his statement before the panchayat and levelled a charge of impotency against the complainant Balia. The appeal was dismissed.

Arumugam Servai and another v State of Tamil Nadu

Supreme Court of India 19 April 2011

The allegation against the appellants is that on 1.7.1999, there was an altercation between the appellants and the complainants Panneerselvam and Mahamani in a Temple Festival regarding the method of tying bullocks in the Jallikattu. The appellant Arumugam Servai then insulted Panneerselvam by saying "you are a pallapayal and eating deadly cow beef". Then accused attacked Panneerselvam with sticks causing him injuries on his left shoulder. When Mahamani intervened he was attacked by the accused with sticks, and he sustained a fracture on his head, on which there was a lacerated wound. . Apart from the two injured eye-witnesses, there are 3 other eye-witnesses to the occurrence. The doctor has testified to the injuries. The head fracture on Mahamani indicates the deadly intent of the accused. Both the Courts below have believed the prosecution case, and we see no reason to differ. We have carefully perused the testimony of the witnesses, and we see no reason to disbelieve them. The accused belong to the 'servai' caste which is a backward caste, whereas the complainants belong to the 'pallan' caste which is a Scheduled Caste in Tamilnadu. The word 'pallan' no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone In the present case, it is obvious that the word 'pallapayal' was used by accused No. 1 to insult Paneerselvam. Hence, it was clearly an offence under the sc/st act. . The appellants in the case have behaved like uncivilized savages, and hence deserve no mercy. With these observations the appeals are dismissed.

Daulat Singh v Prem Singh and Others Allahabad High Court 4 April 1938 Second Appeal No. 1343 of 1936
The Order of the Court was as follows : This is a second appeal arising out of a suit for damages for slander instituted by the plaintiff-appellant against a number of defendants. It was said that they had accused the plaintiff of committing adultery with a woman of low caste. The trial Court found that the accusations had been made and that they were not proved to be true. For that reason it gave the plaintiff a decree. The learned Judge of the lower Appellate Court has decided that the allegation was not proved but that the defendants believed in good faith in the truth of it, that the allegations were made in the course of an investigation in accordance with the rules of the caste into the conduct of the plaintiff and that there was no proof of express malice. He held that any statements which were made were privileged and dismissed the plaintiff's suit. In appeal it is argued that the statements were made to a Padhan or malguzar, that is, a headman who was not the person within whose jurisdiction the matter came and that there was no privilege. In the second place it is argued that privilege was not specifically pleaded in the Courts below and that the learned Judge was wrong in making out a case for the defendants-respondents. After hearing learned counsel for the appellants I am satisfied that there is no reason for thinking that the learned Judge of the Court below made any mistake of law. The learned Judge of the lower Appellate Court would perhaps have been justified if he had confined himself to the pleadings alone to dismiss the plaintiff's suit upon the ground that there was no definite allegation of slander at any particular time and place published to any particular person. He has preferred to examine the case upon its merits upon the evidence which was produced before him and in so doing he has come to the conclusions which I have described above. The facts which he has found legally justify his conclusion that the defendants were not guilty of any act which would render them liable to pay damages to the plaintiff. There is no force in this appeal and I dismiss it with costs. Leave to appeal is granted.

CONCLUSION

Caste panchayats do not hold any legal status in the country but still they are prevalent in the country specially in Haryana, Western Uttar Pradesh and in some parts of Rajasthan. They are based on stern laws which cannot be bended for anybody. The main law of these caste panchayats is that no boy or girl can marry a girl or a boy of the same gotra.

There are a number of cases in which young boys/girls were ruthlessly killed just by the name of honour killings. Their families were socially boycotted and in most of the cases the accused was either killed forcefully or the accused committed suicide.

Finally concluding the project I would say that the system of caste panchayats is a curse on Indian society which is following the evils of the culture of the society.

BIBLIOGRAPHY

         

www.indiankanoon.org www.lawcommissionofindia.inc.in www.courtnic.nic.in www.juris.nic.in www.westlawindia.com www.manupatra.com www.mondaq.com www.jurisonline.org www.google.com www.azadindia.org

A NOTE ON CASTE PANCHAYATS AND GOVERNMENT OF INDIA BY ROBERT M. HAYDEN.