A Dangerous Step Backwards
Giving in to the khap panchayats could legalise caste divisions
Mary E John
The recent notoriety of khap panchayats, the 'community courts' of the
Jats of Haryana and western UP, is easy to understand. Sensational
events like families killing their children in the name of community
honour – and being sentenced to death for their crime – are obvious
media magnets inviting phrases like "medieval barbarism". But their
legal setbacks and media infamy have only emboldened the khaps, who
are now demanding legal sanction for their caste customs. They want
the Hindu Marriage Act (HMA) to prohibit marriages where both bride
and groom belong to the same gotra.
How should a liberal state that is sensitive to plural traditions
respond to such a demand? Answers depend on an analysis of
implications and stakes.
Far from being a rarity confined to a few 'timeless' Jat villages,
the prohibition on sagotra matches is part of a wider set of rules
regulating marriage practices across the country. Indeed, the
prohibition only makes sense within caste endogamy – or the rule that
both partners must be from the same caste. This rule has many
sub-clauses, one of them being the sagotra prohibition, which exclude
specific groups and persons from the marriageable group. In large
parts of north India, caste endogamy is paired with village exogamy,
or the rule that the bride must not be from the same village as the
groom. In fact, most recent incidents of 'honour killings' were
provoked by the violation of the same-caste and different-village
rules rather than the sagotra prohibition.
If the khaps have nevertheless chosen to highlight the gotra issue,
the reasons are strategic. The gotra issue can combine ancient
tradition and modern science, a potent combination in India. It can be
claimed that not marrying within your gotra is the traditional
expression of the rational-scientific need to avoid genetic
inbreeding. Such plausible motives help to deflect attention from what
is really at stake – the struggle to regulate everything from
community identities
and property rights to the norms of gender and sexuality. There is
nothing medieval about this struggle. The khaps are trying to cope
with the combined effects of a flailing rural economy, changing caste
relations, and emerging youth cultures. The gotra issue becomes a
means for gaining legal sanction, something that the khaps desperately
need to regain their waning power.
The law the khaps want changed, the HMA, is remarkably permissive.
Though it forbids marriages among immediate family members and
descendants, the HMA has no social prohibitions of any kind, certainly
none based on caste, clan or geography. On the contrary, the Act even
allows local customs to override its own prohibitions, stipulating
only that such customs should not be unreasonable or opposed to public
policy.
Should an Act that shuns all social prohibitions be amended to
legalise the prohibitions the khaps insist on? Commentators like Madhu
Kishwar have argued that it should, because this allows the khaps to
exercise legitimate community rights; dissenters can always use the
Special Marriages Act (SMA) instead of the HMA. Despite seeming
reasonable, such proposals harbour undesirable consequences.
The first worrisome consequence concerns the possible legalisation
of caste divisions. Since gotras presuppose caste – they exist only
within and not across castes – a ban on sagotra marriage presumes that
both partners are from the same caste. Legal manoeuvrings that we
cannot foresee today could lead to a situation where inter-caste
marriages are rendered illegal under the HMA. This would, of course,
grossly violate the vision of Babasaheb Ambedkar, the main architect
of the HMA.
A second troubling possibility is that by bending the HMA to fit
their doctrines, the khaps could gain the right to define Hindu
marriage. This is what is implied when dissenters are offered the SMA
in place of the HMA, because the only substantial difference between
the two is the lack of religious identification in the SMA, which is
closely modelled on the HMA, including similar lists of prohibited
relations, and similar clauses deferring to custom.
Any strategy for positive change must certainly avoid giving legal
sanction to castebased prohibitions, whatever their claims to
tradition or custom. Nor should we fall into the trap of defining
'honour killings' in order to oppose them. Rather, the challenge is to
break out of these frameworks while enabling communities to face
change with dignity and compassion. Communities acquire authority by
practising the values of custodianship and winning the trust of the
young. This authority is undermined rather than asserted when they
react as the khaps have to eloping couples – with boycotts and
harassment, followed by physical violence and murder. It is to shore
up their eroding authority that the khaps are seeking further legal
reinforcement for the enormous extra-legal powers that they already
wield.
Rather than give in to such demands, the law must limit itself to
protecting fundamental freedoms, and minimising the logic of
prohibitions. In the world beyond the law, it is for civil society to
help create an ethos where young people are empowered not only to
choose their life-partners, but also to acquire the resources
necessary to sustain their choices, and above all, the maturity to
choose wisely.
The writer is senior fellow and director at the Centre for Women's
Development Studies.
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