MODULE 4

Nature of Indian Society and practice of

RJ in India

Family and Kinship

Kinship system is seen as a method of organizing marriage relations between
groups. Through marriage, Levi Strauss observes, members are recruited to
kinship groups. Kinship is a system of the way the relations between individuals in
the family and between families are organized. Kinship relations are the most
basic attachment a man has. Mother – child relationship is the atom of kinship. As
a cultural construct kinship primarily shapes people for their social living.

“Kinship is merely a structured system of relationships in which individuals are

bound to one another by complex interlocking and ramifying ties” P. Murdock

Kinship was first studied by Lewis Henry Morgan by the way in which the relation
between individuals and groups is established. He propounded the ‘synchronic’
method of kinship, and the structural theory of kinship in his book, ‘System of
Consanguinity and affinity’, 1870. He studied kinship in ‘descriptive’ as well as
‘classificatory’ systems. Descriptive terminology – simplex and complex terms
fashioned from simplex ones, terms keep collaterals distinct from lineal kins.
Classificatory terminology – only simplex terms, terms merge many genealogical
kin types into a few large categories. A classificatory system is one in which the
same term is used to address different relatives such as the term ‘uncle’ is used to
address chacha, mama, mausa, foofa etc. in the descriptive system, a particular
term refers to only one particular relation.

Relations established through marriage are called: affinity

Relations established by blood: consanguinity

Levi Strauss has described in his ‘harmonic’ and ‘disharmonic’ analysis, in

‘harmonic’ the locality and descent are the same e.g. matrilineal and matrilocal. In
‘disharmonic’, the descent and residence do not coincide e.g. patrilineal and
patrilocal.

Robin Fox gave four basic principles of kinship as follows:

1. The women have children

2. The men impregnate women
3. The men usually exercise control
4. Primary kins do not mate with each other
According to Harry Johnson, kinship has six important bases – sex, generation,
closeness, blood relations, division and binding thread

Regional variations of kinship in India are -

a. The northern zone:

1. Society in the northern zone is divided into gotra, which are large and
loosely connected kin groups resembling the clan system, they are
exogamous and patrilineal group.
2. There exists separate kinship terms for persons related by blood and by
marriage. The kinship terms being role terms indicate that the behavior
 towards consanguine is markedly different from the behavior towards
affine.
3. Marriage is governed by the principle of caste endogamy. All castes consist
of hierarchy of sub castes. These sub castes constitute heterogamous
division among all upper castes especially Brahmins and Rajputs. In Bengal
Kulin marriage is practiced. Kulin is group of Brahmins, who claim
themselves to be descendants of learned people.
4. The relationship between the families aligned through marriage are
characterized by indifference and muted hostility. An individual is very
close to his agnatic kinsmen but is not so close to his uterine kinsmen
except the mother’s brother. The groom’s family enjoys a higher status
than the bride family.
5. Normally, the north Indian marriages takes place at an early age, the
spouses being total strangers. In case the bride has not attained puberty at
the time of marriage then second marriage called ‘gauna’, is performed
after she had attained puberty and only then she goes to live with the
groom as husband and wife.
6. Levirate and sororatic alliances exist in the northern kinship
7. The traditional north Indian family is patrilineal, patrilocal and patriarchal
in which women are subordinated generally to authority of men and they
come to enjoy respect only when they become mother or mother in law.

b. The Southern zone:

1. The southern zone is a mix of patriarchal and matriarchal kinship systems.

Both polyandry and polygyny are existent in the Sotuhern zone.
2. N. Srinivas studied the ‘Okka’ in Okkalinge of Karnataka. Okka is the family
organized on almost the same principle as the North Indian joint family.
3. Instances of matrilineal and matrilocal type of family are to be found
among the Kshatriyas, Nayars and Mopla muslims of Kerala and among
certain groups in Karnataka.
4. The matrilineal joint family of Nayars is called ‘Tarawad’ consisting of only
consanguinely related men and women.
5. Marriage relationships are intensification specific.
6. The Namboodari Brahmins follow the practice of primogeniture. The
younger son establishes hypergamous marital alliance with Kshatriyas and
Nayar women, such marital alliance is called Sambandhan.

c. The central zone:

1. The central zone comprises of the following regions: Rajasthan, M.P,

Gujrat, Maharashtra and Orissa. Beside following the northern practice,
there are also certain castes which show a new type of mating – the
marriage of a man to his mother’s brother’s daughter. In some regions the
marriage is practiced only by a few.
2. Rajasthan, Gujarat and Kathiawad practice both the south and north Indian
kinship systems. Some groups practice one type of cross cousin marriage as
the permissive form of marriage e.g. the marriage of a man to his mother’s
brother’s daughter.
3. In Maharashtra. The majority of castes and tribes practice one type of cross
cousin marriage.
4. The Marathas show a hypergamous clan structure.

d. The eastern zone:

1. The eastern zone consists of parts of Orissa, Santhal, Pargana district of
Jharkhand. All people speaking Mundari language are patrilineal and
patrilocal. E.g. Ho, Munda and Santhal have patrilineal systems.
2. Most of the tribal groups permit premarital sexual relationships between
the bachelor and maiden. Thus boys and girls after attaining puberty start
living in youth dormitory which leads to marriages among them.
3. All these tribes are divided into exogamous totemic clans. A person may
marry outside his patri – clans and outside the circle of near relationships
like first cousins. However among the Hos and the Santhals a special types
of cross cousin marriage is practiced a man cannot marry his mother’s
brother’s daughter as long as father’s sister is alive.
4. The married couple live in nuclear household and these are called neonatal.
5. The Khasi of Assam are matrilineal but they are quite different from the
Nayyars of Kerala. The inheritance is along the female line. The youngest
daughter always gets the largest share of the family property. The husband
generally lives in the wife’s family for sometime and is treated as a
stranger, but after the birth of child, the husband and wife establish a
separate household. The house and the land belongs to the man and after
his death, to the youngest sister. The widow may get half if she does not
marry again. In the family the children are normally closer to their mother
than their father and live with the mother after the father’s death. Matri
clan exogamy is practiced. Parallel cousins marriage is not permitted while
cross cousin marriage is also very rare. Perhaps a man can marry his
mother’s brother’s daughter after the death of the mother’s brother and
similarly can marry his father’s sister’s daughter.
 Primary Kins - related to ‘ego’ directly through blood or affinal
relationships.
  Secondary kins - are primary kins of primary kins e.g. father’s brother and
brother’s wife.

 Tertiary kins - are secondary kins of one’s primary kins and also primary
kins of ego’s secondary kin.

 Agnate - is one related by descent through males only.

 Uterine - when descent is traced through females exclusively.

 Teknonymy - when a person is referred to as a parent of his/her child.

Nyaya Panchayat
We can define “Nyaya Panchayat” as the word “Panchayat” means a group of
people in a village who enjoy respect from their community and have the authority
to issue orders to the community. And the word “Nyaya” means justice. Even in the
earlier period of Indian culture, village communities created their panchayats but
without elections constituted the panchayat with the responsible persons of that
village community. Therefore decisions and disputes resolved by the village
headman are generally respected, trusted, and accepted by the parties and the
village community. such a person was assisted by the members with an equal
position to refer to the panchayat and the members of the panchayat termed
“Panch Parmeshwar“. And such Nyaya Panchayats are constituted for the
settlement of disputes at the village level on the principle of natural justice with
criminal and civil jurisdiction. But in independent India, the role of panchayats in
providing justice was discarded and village development tasks were entrusted to
them.

Evolution of Nyaya Panchayats:

 Village bodies were first formally empowered to provide certain administrative
and judicial functions under British rule in 1888 from the Village Courts Act,
which was amended in 1920 and 1951 respectively. The Madras legislation
introduced the scheme with two classes of village courts, the first being courts
presided over by village “Munsif” and the second being elected panchayat
courts of not less than five and not more than 15 members. The Royal
Commission on Decentralization in 1909 recommended the restoration of
judicial panchayats in minor civil and criminal cases arising in the village.
 In 1915, the British Government of India passed a resolution leaving the matter
of establishment of Nyaya Panchayats to the Provincial or State Governments.
In 1920, the Bombay Village Panchayat Act was passed and as a result, many
panchayats were started in the country. The Civil Justice Committee of 1924-25
also held that the judicial function of the Panchayat should form part of the
village system
 Since independence, almost all the states have created Village Panchayats under
the guidelines of Directive Principles of State Policy and as a result, some states
have created statutory Nyaya Panchayats. In independent India, the
first Committee on Nyaya Panchayats chaired by G. R. Rajagopal recommended
that villages should be given the freedom to elect members of Nyaya
Panchayats, and the committee also framed a bill entitled “Nyaya Panchayat Bill
of 1962”.

Present Status of Nyaya Panchayats:

As per information available in February 2022, a total of 476 Grama Nyayalayas

have been notified so far by 15 states, and out of these 258 are operational in 10
states at present. These 10 states have been notified and functioning the Grama
Nyayalayas in their states, which are Madhya Pradesh, Rajasthan, Kerala,
Maharashtra, Haryana, Punjab, and Jharkhand. Out of these 5 states Goa, Andhra
Pradesh, Telangana, Ladakh, and Jammu & Kashmir are notified but not
implemented. Law Minister Kiren Rijiju said in Lok Sabha, that a total of 258 Grama
Nyayalayas disposed of 43,914 cases in the last 15 months from December 2020 to
February 2022.

The Grama Nyayalayas scheme has been regularly evaluated and monitored by the
State High Courts and a third-party evaluation of the scheme was done by NITI
Aayog and which also recommended the continuation of the scheme. The
government of India has expanded the scheme for 5 years up to 31/03/2026 with a
budgetary of Rs 50 crores. The Union government provides on-time assistance of Rs
18 lakhs to states towards expenses for setting up one Gram Nyayalaya. The central
government also assists 3.20 lakhs per One Gram Nyayalayas towards expenses for
operating these Grama Nyayalayas for the first 3 years.

Need for Grama Nyayalayas:

 The Law Commission of India in its 14th report recommended the establishment
of Grama Nyayalayas for providing speedy and inexpensive justice to the public.
It stated that the composition of the democratic Nyaya Panchayats should be
established through elections. It also suggested that the establishment of a
three-member panel with presiding officers be selected from amongst the cadre
of judges of that state, and two lay judges to be selected on the
recommendations of the panel comprising of the district magistrate and district
sessions court.
 The 42 Constitutional amendment act inserted Article 39A into the Constitution
of India, which provides that the State shall create a judicial system that
promotes justice based on equal opportunities for the poor and weaker sections
of society. Appropriate training should be provided to Nyayadhikari about legal
procedures, the local language, legal skills, and customary and traditional
knowledge. Despite these measures, access to justice and quick and inexpensive
dispute resolution at the grassroots level need to be materialized.
 Infrastructural facilities for a dedicated building and its staff should be provided
and appropriate budgetary measures should be taken.
 The state government should provide all facilities to the Grama Nyayalayas
including the provision of vehicles for holding mobile courts by the Nyayadhikari
while conducting trails outside its headquarters. The state government should
provide a police officer who functions within the limits of the jurisdiction of
grama nyayalayas and shall be bound to assist the Grama Nyayalayas in the
exercise of its lawful authority.
 The government should consider several measures such as simplification of
procedural law and establishment of scientific dispute redressal mechanisms in
Grama Nyayalayas. Scientific monitoring of the performance of Grama
Nyayalayas must be done periodically by respective high courts and other
institutions like NITI Aayog. Awareness campaign to sensitize people about the
importance and easy access to the Gram Nyayalaya process through digital and
print media. The state should carry forward the ideals of Mahatma Gandhi and
his support for the “swadeshi” system of dispute settlement.

Functions of Nyaya Panchayats:

 Nyaya Panchayats function as judicial components of the Panchayat system,

which ensures proper administration of justice at the local or village level. It is a
judicial function in both civil and criminal fields.
 Nyaya Panchayats have minor civil and criminal jurisdiction, which extends to
offenses such as simple injury, wrongful possession, theft, and punishing the
accused to pay a fine.
 In civil matters, Nyaya Panchayats have jurisdiction in cases such as suits for
money and goods.
 The Nyaya Panchayats call the witness and the parties to record their evidence
or produce any relevant documents or facts.
 Nyaya panchayats investigate the facts to find out the truth and at the same
time they have the power to punish for contempt, on the other hand, courts
don’t have the authority to investigate.
 The main function of Nyaya Panchayats is to resolve cases as quickly as possible.
 Nyaya Panchayats conduct legal inquiries within its jurisdiction and report as per
the order of the Magistrate.
 Nyaya Panchayats deal with local cases of robbers, Trespassing, and personal
disputes and can impose a maximum penalty of Rs. 100 may be fined.
 Nyaya Panchayats provide justice at doorsteps and save money and time.

Lok Adalats
Lok Adalats decide on the matter on the basis of settlement that a parties
come to terms with. The members of the Lok Adalat give assistance to the
parties in an unbiased manner and help them to reach to a settlement. It
aids people by providing them cheap and speedy justice.
Lok Adalat as a form of Alternate Dispute Resolution

Lok Adalats can be considered as India‘s take at ADR. The term Lok Adalat literally translates
to "People‘s Court". The usage of ADR to settle disputes has been a deeply rooted practice
in Indian history. From ancient times, people have always had the mentality of settling the
dispute among one another without having to approach the Court. In villages, disputes were
always referred to Panchayats for them to adjudicate on disputes arising in the village. The
members of the Panchayat (Panch) used to then put the principles of negotiation, mediation
and arbitration to make the aggrieved parties come to a common consensus and settle.
Hence, it can be said that the process of ADR has been practiced in India as an ancient
practice even at the grassroot level.

The concept of Lok Adalat has originated following Gandhian Principles of Gram Swaraj and
attempts to promote and fulfill the provision of Article 39A5 of the Constitution of India6
which aims at providing equal justice and free legal aid to everyone. Pursuing the motive of
Article 39A, the Legal Services Authority Act, 19877 ("Act") was enacted which gave Lok
Adalats a statutory status. Chapter VI8 of the Act covers various facets governing Lok
Adalats. There have been several critiques stating that while chasing speedy justice, the
quality of justice gets depleted. However, Section 19(2)(a)9 of the Act mandates Lok Adalats
to consist of retired judicial officers which guarantees quality justice owing to the
experience of these officers. The jurisdiction of Lok Adalats is mentioned under Section
19(5)10 stating that its jurisdiction runs parallel to whichever Court is organizing it.
However, the jurisdiction does not permit Lok Adalats to adjudicate upon cases of non-
compoundable nature.

Some common categories of cases that Lok Adalats adjudicate on include family disputes
like matrimonial disputes, cases pertaining to partition, motor accident claims, bonded labor
cases even cases which are not sub-judice and the list goes on. Hence, one can conclude
that the jurisdiction of Lok Adalats is quite wide but is limited to compoundable cases. In
order to approach a Lok Adalat to take cognizance of a case, Section 20(1)(i)(b)11 of the Act
mentions that the consent of even one of the parties involved is enough for Lok Adalat to
adjudicate on the same. Lok Adalat‘s aim is more towards mediating between the aggrieved
parties and assisting them in reaching a common ground in order to reach a solution and
not to determine guilt or pass a conclusive verdict against the guilty. In a situation where a
compromise has not been reached, the Lok Adalat can refer the parties to consider taking
their matter up in Court. Another provision that empowers Lok Adalats is Section 2112 of
the Act "every award of the Lok Adalat shall be deemed to be a decree of a civil
Court"13 and is also binding in nature. Provisions like these help in increasing one‘s
confidence in approaching a Lok Adalat as it displays that this alternate mode of dispute
resolution holds similar powers as a Court does and ensures that the award given by a Lok
Adalat is conclusive in nature.

Lok Adalat is a type of alternative dispute resolution mechanism in India. It is a forum

where disputes pending or at the pre-litigation stage in courts are settled outside the
court through conciliation and compromise. The term "Lok Adalat" literally translates to
"People's Court". Lok Adalat's main objective is to provide a speedy, inexpensive, and
informal means of resolving disputes, particularly in civil cases, through negotiation,
mediation, conciliation, and compromise.

The Lok Adalat is presided over by a retired judge, a sitting judicial officer, or other
individuals who are considered suitable and are having necessary legal experience. The
Lok Adalat's decisions are binding and final, and they have the same status as a decree of
a civil court. The Lok Adalat is an effective means of resolving disputes as it is less time-
consuming and less formal than the traditional court system. Additionally, it is cost-
effective for the parties involved as they do not have to pay the usual court fees.
Moreover, Lok Adalats can resolve disputes on a range of issues including civil, criminal,
and matrimonial disputes.

Lok Adalats can be organized at the district, state, and national levels. The National Legal
Services Authority (NALSA) is responsible for promoting and organizing Lok Adalat at the
national level and The State Legal Service Authority (SALSA) is responsible for the same at
the district level. The Lok Adalat is a statutory body established under the Legal Services
Authorities Act, 1987, to provide free legal services to the poor and marginalized sections
of society and it is a form of "ADR" (Alternative Dispute Resolution). The Lok Adalat
system is based on the principles of justice, equity, and fair play.

Roles and Functions

1. Conciliation: Lok Adalat encourages parties to resolve their disputes through

conciliation, which involves a neutral third party(i.e., the conciliator) facilitating the
discussion between the parties to help them reach an agreement.

2. Compromise: If the parties reach a compromise, the Lok Adalat can make it into a
decree of the court, which is enforceable.

3. Mediation: Lok Adalat can also use mediation as a means to resolve disputes. The
mediator is a neutral third party who helps the parties in reaching an agreement.

4. Jurisdiction: Lok Adalat has jurisdiction over any matter that is pending before a court
or is likely to be brought before it, including civil, criminal, matrimonial, and
compoundable offenses. However, it cannot be used for cases that involve heinous
offenses or cases where a settlement is not possible.

5. Binding Nature: The decisions made by Lok Adalat are binding on the parties to the
dispute, and no appeal lies against its decision.

6. Speedy Justice: Lok Adalat provides speedy justice as the dispute is resolved through
conciliation and compromise, which eliminates the need for lengthy court proceedings.

In summary, Lok Adalat's roles and functions include conciliation, compromise, mediation,
jurisdiction over a wide range of cases, and providing speedy justice through alternative
dispute resolution methods.

Jurisdiction

The jurisdiction of Lok Adalat is limited to certain types of civil cases, such as:

1. Motor accident claims

2. Matrimonial disputes

3. Land disputes

4. Contractual disputes

5. Labour disputes Bankruptcy and insolvency cases

However, not all civil cases can be referred to Lok Adalats. Only those cases that are not
compoundable (cases that cannot be settled by the parties involved) can be referred to
Lok Adalat's.

Moreover, the proceedings of the Lok Adalat are informal and flexible and are not bound
by the provisions of the Code of Civil Procedure and the Indian Evidence Act, but are
conducted based on principles of natural justice, equity, and fair play. The panel
encourages the parties to settle through conciliation and compromise and both parties
must agree to participate in the Lok Adalat process, and the decision reached in Lok Adalat
is binding and official on both parties and it has the same status as a court decree. The
decisions made by Lok Adalats are final and cannot be challenged in any court of law. The
process of Lok Adalat is voluntary and involves a conciliatory approach to dispute
resolution also parties can approach the forum either by themselves or through their
lawyers.

Advantages

Here are some of the advantages of Lok Adalat:

1. Speedy Resolution: It is one of the significant advantages of Lok Adalat and it provides a
speedy resolution to disputes. The process is faster than traditional litigation and cases
can be resolved within a few hours or days.

2. Cost-effective: Lok Adalat is a cost-effective method of dispute resolution, as it

eliminates the need for expensive legal proceedings. The parties involved in the dispute
do not have to pay any court fees or legal expenses.

3. Voluntary: Participation in Lok Adalat is voluntary and the parties can choose to
withdraw from the process at any time. This ensures that both parties are willing to work
towards a resolution.

4. Reduced burden on the judicial system: Lok Adalat reduces the burden on the judicial
system by providing an alternative mechanism for dispute resolution. This helps in
reducing the backlog of cases in the courts.

5. Access to Justice: Lok Adalat provides access to justice to a large number of people who
cannot afford expensive legal proceedings. It is an effective mechanism for resolving
disputes involving marginalized and vulnerable sections of society.

Caste and Khap Panchayat

Khap panchayat is an institution which has played an important role in history in
maintaining unity and order in the society. Khap panchayat emerged as a social body
responsible for the administration and security of all the villages that fell under its territory.
As an administrative body, there were certain norms and rules which became law. In the
modern era, not all rules could be turned into law, so the khap panchayats are still ruling
with norms that may or may not find legal enforceability. In a khap, the most common
notion is that all members of a village or gotra share the same ancestry and that way they
are all siblings and are not allowed to form a matrimonial relationship. In the past, many
times these incidents of marriage have been punished by the khap panchayats with death
sentences and such actions are called ‘honour killing’.

Origin of Khap panchayats

Generally, Khap panchayat exists in the form of union of villages, their pre-dominance could
be largely traced from North India, but the traces of the origin could be found throughout
the country. No exact period of origin of khap panchayat could be traced back from the 14th
Century when small villages used to make unions for the security of the villages. There is a
common notion among the historians that the concept of khap panchayat evolved only after
settled village life became possible. In each village, there was a caste system and each caste
in majority and ruling set a set of rules and norms for that village to follow. Any violation of
those rules or norms were punished by that khap panchayat. In that way, the origin of a
khap panchayat as a quasi-judicial body could be traced. But with the change in time the
nature of the khap changed to a more politically cloaked way.

A khap is a collective unit of a number of villages that came together for the purpose of
social control in the form of a political council. The khap is generally headed by the
dominant caste among the villages. Also, the same caste or clan had control over the most
resources such as agricultural land available to the villages. If no one clan dominant in a
village could form a khap, other clans from other villages would come together to form a
khap for collective efficient defence and control over the people.

Notions and rules of the Khap

As already discussed, the khap panchayat governs the khap gotra (clans) from several
villages. The main principle on which the khap or villages under khap panchayat works is
that all born in the same gotra are brothers and sisters. Love marriage is prohibited by the
khap and is considered as a taboo. Those living in a village are not allowed to marry in the
same gotra or any other gotra in the same village. Those defying the rules were often
sentenced to death by the khap panchayat in the past.

The khap panchayat’s tool of punishment is social boycotts and fines in a moderate
situation. In extreme cases, there have been incidents in which khap panchayat ordered
death sentence and even forced suicide. All these measures are taken on the ground of
honour and brotherhood. All this is possible because the local government is not strong
enough and is dependent upon these villages and khaps for votes. Ever since independence,
no government has actively tried to control these institutions.

Wrongs of Khap panchayats

Khap panchayat is overtaking the role of the judiciary for a long time. It is done because
they believe that in court and police investigation the families and individuals are exploited.
In khap panchayat, they believe that because everyone knows everyone and are aware of
the situation they can decide the matters themselves informally. This way they can avoid
the exploitation of the judicial process. Also, the evidence validity is easier as they could be
cross-checked by the neighbouring people.

Khap panchayats in the state of Haryana and other close regions have continuously targeted
women and in several instances threatened, abused and killed girls via verdicts. In these
cases, the family of the victims generally doesn’t have any problem with feeding pesticide
pills and then disposing of their bodies by burning it down without any police case. This is
done because the entire burden of preserving the honour of the khap or village is put on
girls. It is seen that for boys the rules are rather flexible and they are often exempted from
grave punishments but for girls, there is rarely any exemption. If a couple elopes the family
face abuse and is often levied with fines in lakhs and in some cases the other women of the
family face violence and abuse.

Some verdicts of Khap panchayats

Khap Panchayats have given verdicts on several cases till date. These cases range from a
case of any marriage that is done by violating the customs of the village to a case of some
dispute or dowry or social reform that goes against the norms of the khap. There are cases
in which panchayats came to a decision while being consistent with the traditional laws and
inconsistent with modern state laws. Some famous cases of khap panchayats’ brutality are:

1. Case of Chaubisi khap

This is a case of June 1983 wherein, to counter the social issue of excessive expenditure in
weddings, a sarv khap panchayat was called by the Pradhan of Chaubisi khap. The reason for
the meet was to lighten the burden of wedding expenditure. Representatives of all the khap
panchayat from the area who formed sarv khap participated and came to the consensus
that:

1. There is a need to cut down the total cost of a wedding and related expenditure.

2. The barat at the wedding should not have more than 25 persons in it and the
participation of women in the barat was restricted.

3. The custom of tervi bhoj after the death of a person was called unnecessary and
was barred.

4. All the divorce cases will only be heard by the panchayat of the village.

5. In case of divorce, without any ground for divorce or fault of the girl, the
husband’s family shall pay a fine of Rs 11,000 and will face banishment from the
community.

6. There won’t be serving liquor at a marriage gathering.

7. Appreciation for adhering with these guidelines of the khap was announced.
The implementation of these social reforms has been the main issue with these judgements
of the khap panchayat.

2. Case of Sheoran khap

In this case of Bhiwani District of Haryana, there was a couple running a nursing home and a
high school. In the same area, there were schools of others from other villages under
different khap panchayats. The enmity due to competition got intense with time and later
turned into violence. The doctor was framed with false charges of raping one of her patients
and the wife was obstructed to enter the nursing home. The members of Sheoran khap,
under which the Bhiwani district fell, were convicted for unlawful assembly and for setting
the hospital on fire. Despite the court’s intervention, members of the khap took the law into
their own hands and were guaranteed protection of their interest by the khap itself.

Honour killing

Honour is the most important aspect of a patriarchal society in India. Both boys and girls
sustain the honour of the family among themselves in a different way. As per the norms, the
girls are the honour of the family and boys as a husband, father and brother have the
responsibility to protect that honour. Honour crimes or killings happen when there is an
inter-caste marriage, inter-religion marriage, marrying within the same gotra, premarital
affairs, inter-class marriages, marriage against parent’s wishes and so on. These acts of
violence and death sentencing are justified by the khaps in the name of honour of the
community. Some cases of honour killings are:

1. Mehrana killing, 1991

In this case, a jaatav named Vijendra (earlier an untouchable lower caste) eloped with a
middle-class Jat girl of the village with the help of a third person, a friend. Khap panchayat of
the village ordered their search and sentenced them to be hanged from the tree and burn
them. The order of the panchayat was executed and the next morning all three of them
were hanged and burnt alive to death in the middle of the village.

2. Manoj-Babli murder, 2007

This is an important case in the history of khap panchayats. In this case, the honour killing of
a newly married couple Manoj-Babli was taken in cognizance by successive courts. The
judiciary convicted the accused in the case for honour killing. Like always, the killing was
ordered by the khap panchayat of the Karoara village in Haryana. Although the couple were
of capacity to be married and the marriage was not invalid as per any existing laws but the
khap believed them to be siblings as both of them belonged to the Banwala gotra. The
couple married despite knowing that this would cause sanctions against them from khap,
nevertheless, they got married. Later they were abducted and killed by their relatives.

3. Shiva Kumar and Megala, 2010

In this case, a 20-year-old girl Megala wanted to marry 24-year-old boy Shiva Kumar, but
they were not allowed to marry by their families as they were related to each other and she
was married to someone else in June 2010. Later, after getting married she eloped with
Shiva and when traced, they were abducted. He was killed by the family.

4. Nitish Katara killing, 2002

In this case of 2002, the victim Nitish Katara was kidnapped and killed for having romantic
relations with politician DP Yadav’s daughter, Bharti Yadav. He was killed by her brothers,
Vikas Yadav and her cousin Vishal Yadav. As per the investigation, Katara received
threatening messages from Yadav family various times. He was taken to a drive by the
brothers of Bharti when Nitish and Bharti were attending a mutual friend’s wedding. As per
the report, 3 days later Katara’s dead body was found near a highway. He died due to
multiple hits of a hammer and then set ablaze. In this case, the Supreme Court sentenced
Vikas Yadav 25-year long jail time for the murder. Although the case doesn’t involve an
active role of khap panchayat but still shows the gravity of honour killing in India because of
the caste system and khaps (gotra).

Developments in the status of the khap panchayat

It is significant to note that these Taliban-style caste courts have inflicted a lot of atrocities.
The extent and frequency of their malpractices have made it possible for several
developments to take place. These developments defined their status and tried to limit their
scope of actions in the society. Some developments through the form of judicial judgements
and pronouncements are:

 Smt. Laxmi Kachhwaha vs. The state of Rajasthan (1999)

In this case, for the betterment and protection of women and other weaker-sections of
some communities, a Public Interest Litigation (PIL) was filed in the Rajasthan High Court.
The court in its judgement held that the power of khap panchayat to give judgements are
ultra vires. It was held that they had no jurisdiction to order social boycott, fine imposition
or violate any basic human right of any individual. They gave directives to the State to
legislate necessary policies or enactment for preventing the abuse of power by restraining
such khap panchayats from further exploiting the people. In response to that, the Rajasthan
State Human Rights Commission issued some strict directives to the police authorities of the
state in its communication letter. Directives were for the competent authority to collect
details of all the panchas participating in khap panchayats and take action against them
under the National Security Act. The directives further provided that no government social
benefits policy will be provided to them among other amenities.

 State of UP vs. Krishna Master (2010)

In this case, the Apex Court made a landmark via its judgement. The Supreme Court
awarded life sentence to the three accused of honour killing, for murdering six persons of a
family. Also, the Court said that killing of a whole family in the name of honour of the family
will be dealt with as a rarest of the rare case. The court explicitly made it clear that all those
willing to save the honour of their family by taking someone’s life should know that the end
is life penalty.

Similarly, in the earlier mentioned Manoj-Babli murder case the five accused were convicted
with life imprisonment by the Haryana High Court. The Court also ordered necessary action
against police personnel who delayed the case.

 Sujit Kumar vs. State of UP (2011)

In this case, the Allahabad High Court observed that although our constitution itself
safeguards secularity and liberalism, still police and accountable authorities seem not to
take any steps to counter these barbaric and demonic acts. The murders in the name of
honour shall not get away easily.

 Arumugam Servai vs. State of Tamil Nadu (2011)

In this case, while reiterating the marriage rights of a person, the Court stated that one can
marry whoever they like once achieving majority with consent. If the parents don’t agree to
their relationship in an extreme case they can only sever their social and personal relations
with the couple but can not give threats or commit harassment or any form of violence. The
Court stated that the act of khap panchayat to institutionalize the act of honour killing of
those who get married defying the norms of the village or khap panchayat is completely
illegal and should be stopped.

The Court directed all the State authorities and policy throughout the nation to make sure
that in inter-caste or inter-religion marriage of both the partners being major shall not be
harassed. If anyone does so, he shall go through legal prosecution at the earliest with
sternest penalties if convicted. Also, the State Government is required to immediately
suspend the District Magistrate/Collector and SSP/ Sub-Inspector of districts policies and
take action against and criminally prosecute them if they had the knowledge of such activity
and did not take action in time to prevent it. They should be prosecuted if they did not
apprehend and arrest the culprits and charge-sheet them for that they would be considered
as an accomplice to the whole act.

Inputs from the Government for Khap Panchayat

Recognising the need for a special law to control and apprehend those committing honour
killing, the Central Government has made its intention to bring such law clear. As per the
proposed law, some provisions would be to punish the whole panchayat or victim’s families
with capital punishment or life imprisonment, if their sanctions result in the death of
victims. The death must happen in consequence of something that the khap panchayat does
not approve of and feel discriminatory against it. The proposed bill shall shift the onus of
proof to the accused to prove that he or she did not commit honour killing.

The draft bill shall make the addition of a Clause to Section 300 of Indian Penal Code, 1860.
There will be amendments to the Indian Evidence Act, 1872 and the Special Marriage Act,
1954 to delete the provision that talks about, 30 days prior notice period for solemnization
of marriage under the said Act. The new bill shall provide a new definition of honour killing
for the purpose of treating it as a special crime and better prosecution of accused under its
provisions. The law commission has also proposed legislation namely ‘the Endangerment of
Life and Liberty (Protection, Prosecution and other measures) Act, 2011’. The reason and
objective for this Act are to stop evil practices of honour killings and related crimes and
safeguard the lives of people who might be endangered because of the existence of khap
panchayat and related institutions. The Act will prosecute persons or groups who are
actively involved in the exploitive and violent actions of the khap panchayat. Innovatively,
this Act bars the candidature of a person to contest an election.

The caste panchayats and their evil practices will continue unless banned as they are not an
elected body yet continue to work with popular support. This is important to understand
how these archaic institutions get their power among all the constitutional institutions such
as Panchayat, Judiciary and State Government. The Indian Judiciary has, again and again,
shown commendable activism to constrict the khap panchayat and evils done by them.
However, still continuing and growing illegal activism of khap panchayat shows the failure of
its policies. As they are not a statutory or constitutional body or cannot drive legality for its
existence from any source, their decisions are not legally enforceable but their terror could
only be curbed by a complete ban on them.

The Delhi High Court in its judgement of Naz Foundation vs. Govt. of NCT of Delhi,
2009 already stated that constitutional morality supersedes public morality and in this case,
khap panchayat could not be defended in the name of public morality. As far as khap
panchayats and honour is concerned, it is not honourable to kill an innocent person. Also, it
is necessary to punish those who violate human rights to protect their harsh, derogatory
and illegal practices associated with their religious views. Some suggestions in the context of
the above-presented points are-

1. The urgent need for enactment by the parliament to finally control or stop the
practices of khap panchayat is to be realized.

2. Punitive provisions are required similar to those presented by the law

commission that talked about barring a person from contesting election if found a
part of such khap panchayat. Similarly, anyone proved to be part of such khap
panchayat assembly shall attract criminal liability and should be punished
accordingly.

3. The amendments in the Special Marriage Act, 1954 are required to decrease the
registration period window from one month to one week. So that the marriage
could get legal validity sooner, for getting protection from the law sooner.

4. Amendments to the Indian Evidence Act, 1872 are also necessary for shifting the
burden of proof from the prosecution to accused to prove their innocence in case
of honour killings or related crimes.

5. Lastly, amendment in the Indian Penal Code should be made in the form of an
addition of a provision to Section 300 which talks about murder. The provision
should define honour killing as a special crime punishable as a rarest of rare case.
This amendment would widen the scope and ambit of Section 300 so that it
would include cases of death due to instigation, due to harassment or cruelty.
Most importantly, we need answers to certain questions. One of the questions is why do
they still continue to exist in the State when there already exists a legally established
constitutional structure to handle and execute all such responsibilities whether it being
judicial or security or law and order maintenance. In India, we already have a rule of law in
the form of the Constitution so why is it not being implemented? Why do those responsible
for maintenance of law and order are unable to convict or take action against these
perpetrators of crime working with public support without any fear? Although it is already
presented that numerous times courts have used judicial activism, yet we are not able to
bring any substantive change in the laws and policies to deal with the existing situation.
Lastly, we need to ask for how long these people will continue to keep on supporting these
panchayats and when will they realise that they are supporting something that is against
humanity itself.

Gram Nyayalayas
Gram Nyayalayas are village courts for speedy and easy access to the justice system in the
rural areas of India. The establishment of Gram Nyayalayas in India can be traced to the
Gram Nyayalayas Act, 2008 passed by the Parliament of India. Even though the target was
to set up 5000 village courts in India, only about 200 Gram Nyayalayas are functional now.

The Constitution of India under Article 39-A mandates for free legal aid to the poor and
weaker sections of society. The Law Commission of India in its 114th report recommended
the establishment of Gram Nyayalayas for providing speedy, substantial and
inexpensive justice to the common man. Subsequently, the Parliament of India passed
the Gram Nyayalayas Act, 2008 providing for its establishment.

Salient features of the Gram Nyayalayas Act

The Gram Nyayalayas Act defines its establishment, jurisdiction, and procedure in civil and
criminal cases.

Establishment - Each Gram Nyayalaya is a court of Judicial Magistrate of the first class.

Its presiding officer (Nyayadhikari) is appointed by the State Government in consultation

with the High Court. The Gram Nyayalaya shall be established for every Panchayat at the
intermediate level or a group of contiguous Panchayats at the intermediate level in a
district. The seat of the Gram Nyayalaya will be located at the headquarters of the
intermediate Panchayat; they will go to villages, work there and dispose of the cases.

Jurisdiction - Gram Nyayalayas have jurisdiction over an area specified by a notification by

the State Government in consultation with the respective High Court. Nyayadhikari can hold
mobile courts and conduct proceedings in villages. Gram Nyayalayas have both civil and
criminal jurisdiction over the offences.

 They can try criminal offences specified in the First Schedule and civil suits specified in
Second Schedule to the Act.
 The Central as well as the State Governments have been given the power to amend
the First Schedule and the Second Schedule of the Act.
 The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.

High Courts can transfer eligible cases from the District court to the Gram Nyayalayas. The
Court shall try to settle disputes via conciliation between the parties and the court can make
use of the conciliators to be appointed for this purpose.

Summary Procedure - Gram Nyayalayas shall follow a summary procedure in the

criminal trial. Summary proceedings are faster and simpler than ordinary steps in a suit.
They are normally deployed for cases involving a smaller number of definite issues that
require prompt action. The judgments and orders passed by Gram Nyayalayas are deemed
to be a decree. Gram Nyayalayas are not be bound by the rules of evidence provided in the
Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject
to any rule made by the High Court.

Appeal - The appeal in criminal cases shall lie to the Court of Session, which shall be heard
and disposed of within a period of six months from the date of filing of such appeal. The
appeal in civil cases shall lie to the District Court, which shall be heard and disposed of
within a period of six months from the date of filing of the appeal. A person accused of an
offence may file an application for plea bargaining.

Need for Gram Nyayalayas

Gram Nyayalayas can greatly help in

 devolving justice delivery to the fourth tier

  ensuring equal access to justice
 reducing the burden of district courts
 delivering speedier justice
 reducing the costs associated with litigation for the common man
 reducing dependency on extra-constitutional forums of justice

Gram Nyayalayas are not operational due to -

 Lack of infrastructure like buildings, office spaces and related equipment

 Lack of man-power resources, notaries, stamp vendors etc. at sub-district level
 Inadequate Central assistance
 Lack of awareness among lawyers, police officials
 Non-cooperation of enforcement agencies
 The reluctance of state functionaries to invoke the jurisdiction of Gram Nyayalayas
 Setting up of legal services institutions at Taluk level reducing the dependency on
Gram Nyayalayas

Mediation Centre
In restorative justice focuses on repairing whereas in mediation the focus is on conflict
resolution. If there is a criminal case then a person may choose to get restorative justice but
if the case is related to family, place of work, or antisocial behaviour then one can go for
mediation. Mediation is a way of resolving disputes which helps the people involved to
reach an agreement with the help of an unbiased mediator. The parties rather than the
mediator, decide the terms of the settlement.

To avert such a situation from arising and to decide the issues, what is required is an
approach in which no one feels that they have ‘lost’. In other words, both parties need to
come to a ‘settlement’. They need to get a ‘win-win’ result. Mediation is intended to bring
about, in particular, this kind of outcome. It does this through a process in which both
parties feel that they are treated equally and they are given the same consideration,
speaking time, preparation, and so on. Most significantly, the mediator is, within ethical
boundaries, ‘neutral: that is to say, the mediator does not ‘take sides’ or speak or act as if
one party is ‘in the right’ and the other ‘in the wrong’. The mediator, in other words, is
accountable for the process but has no vested interest in the conclusion
Mediation or somewhat the role of a mediator is part of the process of Restorative Justice,
though phrases such as: ‘resolution, resolving conflict, connection building, settlement,
comprehensiveness, and mutual agreement’, in many ways reflect the benefits associated
with mediation and give rise to the hypothesis that Restorative Justice and Mediation are
fundamentally the same when in reality they are very different

Arbitration
The main aim of arbitration is to ensure effective, quick and consensual decision making
with minimum court intervention. The intervention of the courts can be categorised into
three:

(a) Pre arbitral stage -

Section 8 of the arbitration and conciliation act mandates any judicial authority to introduce
the parties to arbitration in respect of an action brought before it, which is the theme of
arbitration agreement.

Section 9 gives the court the power to grant interim measures in accordance to Section 36
of the act. The court shall have the power of making order as it has for the purpose of, and
in relation to, any proceedings before it.

Section 11 gives the courts the power regarding the appointment of an arbitrator. According
to this section the Supreme Court or the High court or a person designated by them should
make sure that an arbitrator is appointed within sixty days from the date of notice to the
opposite party.

Section 45 talks about the power of judicial authority to refer the parties for arbitration.
That is through this section the act enables the courts to decline to refer parties to
arbitration if it is found that the arbitration agreement is null and void, inoperative or
incapable of being performed.

(b) During arbitration process –

Section 27 states the court assistance in handling the evidences. Section 27 of the
arbitration and conciliation act makes a provision for the arbitral tribunal to seek the
assistance of the court in taking evidences. Such help can be looked for willingly, or by
involved with the contest, with the endorsement of the court.

(c) Post arbitral award -

Section 34 specifies about the application for setting aside an award. An arbitral award
might be put aside by the court only if:

 The party was under some incapacity

 When the arbitration agreement is not under the law
 When the party making the application was not given legitimate information or
notice of the appointment of an arbitrator
 It contains choice on issues past the extent of discretion
 The composition of the tribunal or arbitral procedure was not at par with the
agreement of the parties.

The award may also be set aside if the court finds out that:

 The topic of the contest isn't fit for settlement by assertion under the law
 The arbitral award is in strife with the open arrangement of India

Section 34 gives the court the judicial power to intervene and set aside the arbitral award.

 Pre arbitral stage

 During the arbitration process
 Post arbitral award

These topics are already covered under previous modules.

Scope for RJ in Indian Criminal Justice System –

Plea Bargaining, Restitution, Withdrawal from Prosecution, Compounding of Offences,
Victim Compensation: new law and some existing Compensation Schemes, Free Legal Aid,
Mediation Centre, Arbitration, Negotiation and Reconciliation.