The sprawling banyan tree at the centre of the village; the raised mud platform around its base; imperial looking elderly men, replete with handle-bar moustaches, white attire and matching turbans; the leader of the pack easily identifiable, his pre-eminence exalted by his late arrival, a raised seat and fawning sidekicks carrying silver urns awaiting the tell-tale spit; the throng of tense by-standers; the crestfallen accused, often shirtless and, of course, clueless! And finally the fateful verdict, delivered in a no-nonsense baritone that forecloses appeal or re-writing. Indeed, the scene and settings have been immortalised by Tamil movies, in serious reverence or comic spoofs. In reality too, from petty sheep-theft to land disputes to social conflicts, the panchayat and Nattamai, have prevailed in India that is Bharath, from time immemorial.
In the constitutional scheme of things, panchayats may refer to the third tier of administration delivering grassroots governance, but in popular perception they are almost always seen as judicial entities. ‘Panchayat’ originally meant a jury of five picked from the eminences of a village. It has a hallowed historical status dating back to 2500 BC and goes by various names across India — Khaps is, however, the name that we are most familiar with now. Of course, in the typical western view these panchayats are called ‘Kangaroo Courts; ‘katta panchayat’ would be an approximate Tamil colloquial derisive equivalent. But despite geographical, linguistic and cultural vagaries, their essential character has remained unchanged. They are still the last word.
This role of panchayats as adjudicators of all things under the sun is now a raging controversy. The recent conviction by a Haryana court of members of a khap panchayat for ‘honour killings’ has not only set the cat among the pigeons at ground zero but also ignited macro debates on tradition vs law, besides drawing attention to the ‘official’ judiciary. The script runs thus: A khap is a ‘group of villages united by geography or caste’. Khaps do not look kindly upon marriages within the same gothra, lineage or even a village. A couple defied this diktat and was promptly put to death right under the nose of the State law and order machinery. The khap leaders who dished out this gory ‘justice’ have now been sentenced to death. Across north India, the khaps and such similar entities are now rallying, seeking legitimacy and amendments to law so that local traditions and practices get legal sanction.
These panchayats which constitute a parallel judicial system have naturally been subjected to enormous scrutiny. First, there is no denying their vintage, utility in settling disputes or widespread influence and acceptance. The question, therefore, is whether they are relevant in a modern milieu and compatible to jurisprudence as it prevails today. The darker side of such panchayats is self evident: punitive measures like honour killings, rape, lynching, fines and seizure of property are grossly uncivilised and neither statute nor shastras can condone such barbarity.
Also, khap justice is invariably vitiated by caste discrimination and oppressive tendencies prompted by gender, ancestry etc, all of which make it notorious and nauseating. The alibi of science is often invoked as with in-breeding, ie, wedlock within close lineage, which has been proven to set off negative genetic effects. But it is too thin and tenuous a cover because who can guarantee if the gothra norm had not been violated in previous generations? But then, in a scenario where gay rights and live-ins are worn as talismans of liberalism, resistance to in-breeding looks downright prudish, even if there be merits. Having thus lost all their arguments, it is small wonder that the khaps are now trying to preserve their hegemony over society by invoking tradition or sentiment, always a safe bet and a sensitive gambit.
The nattamais may still be in the dock, but the law too is on a sticky wicket when it comes to such cultural conundrums. The absence of a uniform civil code gives judges too wide a lattitude to decide on matters concerning religious practices and customs. Many verdicts actually ratify and even pamper such sectarian injuncts even if they are incompatible with ‘modern ideas’. For instance, a court recently held that a non-muslim has to perforce convert to Islam in order to marry a Muslim because ‘that is what the Islamic personal law stipulates’! Of course, the whole world knows what the Islamic law states, but how can a court openly share the Shariat view, in gross opposition to the much touted religious freedom which it is constitutionally obliged to uphold? The statutes, for their part, also invite trouble. In the present case, the khaps are demanding that the Hindu Marriages Act be amended to ban sa-gothra marriages. In support, they quote a provision which prohibts marriage within close relatives but allows it if there is such a custom in that community. Indeed, in law, the devil is in the exception!
Khaps and Kangaroos also owe their survival to the judiciary’s faults and defaults. Chief Justices may claim that corruption is not as rampant, but the public knows better. Justice Dinakaran’s case and the resistance to RTI queries are ample proof that the judiciary prefers the safe confines of a self-protective cocoon. Courts deliver judgements, not always justice. Judges are fallible and miscarriage of justice is as much a possibility in courts as in khap. Rather, some nattamais may have a better sense of right and wrong than ‘learned’ men in black, particularly when conscience is required to overule evidence, which can always be concocted to pass legal muster. But worse is the dreary course of law; a litigant’s problem is here and now, while court justice often arrives posthumous! Really, the ‘alternative judiciary with its fast-food delivery system is thriving only because of the slow, tardy and tiresome official one! An ideal situation would be to see if the parallel panchayats could be integrated into the mainstream judiciary. After all, Lok Adalats, arbitrators, ombudsmans, departmental tribunals etc are all out of court entities that take the load off the judiciary.
So what will be the fate of the panchayats, kattai, khap or kangaroo? The jury is still out. But then the jury is still out on the judiciary as well! It, however, looks the shady banyan tree will continue to foster justice, shady or otherwise!
e-mail the writer at trjawahar@gmailcom