Does India Still Need Khap Panchayats?

Graham Crouch for The New York TimesMembers of a khap panchayat, or unelected village council, in Sisana, Haryana, in this May 2011 file photo.

Khap panchayats, which predate India's constitution by centuries, have recently been under the microscope after a series of rapes in Haryana were followed by shocking statements from khap members that seemed to blame women for the crime.

Critics have asked whether these all-male, unelected village councils should be allowed to exist in modern India. The groups, generally made up of men from one gotra, or subsect, of a caste, settle disputes and set unofficial laws about marri age and daily life in hundreds of villages through Haryana and western Uttar Pradesh.

While the Supreme Court and others have questioned their legality, eliminating them is unlikely, social scientists and law experts say. “We cannot ignore them; we cannot wish them away,” said Anand Kumar, a professor of sociology at Jawaharlal Nehru University.

While the role and prestige of these groups are shrinking in some ways, as younger generations become exposed to more modern ideas through urbanization and the media, they often have staunch supporters in legally elected local politicians, Mr. Kumar said.

Khaps are “waning at the social level, but are getting rejuvenated by political parties in our country,” he said. Politicians want to cash in on “primordial ties” to garner votes, he said, so after every election these groups get more powerful.

Mr. Kumar said that politicians seldom back these khaps publicly, but they have an implicit agreement to support each other. Mr. Kumar pointed to a Baliyan khap leader, Mahendra Singh Tikait, who died in May last year, as an example. Mr. Tikait championed farmers' rights in Uttar Pradesh, and it was his constituency of farmers that helped the Janata Dal party, led by V.P. Singh, take over the central government in 1989.

Mr. Tikait was also a leader of the Bharatiya Kisan Union, an Indian farmers' association, but never ran for office. In July 1990, when the then-chief minister of Uttar Pradesh, Mulayam Singh Yadav, discouraged a farmers' assembly led by Mr. Tikait and arrested him, nearly 70 state assembly members threatened to resign, according to The Hindu newspaper, and Mr. Tikait was released.

Politicians publicly distance themselves and their parties from the khaps' stances but stop short of any other action.

“No power has been given to them to talk against the constitution, and some of their statements are illegal,” Gee ta Bhukkal, Haryana's minister for women and child development, told India Ink in a telephone interview.

But when asked if the state was taking any action against what she thought was “illegal,” Ms. Bhukkal, a member of the Congress Party, which is in power in Haryana, said, “We don't need to take action against them. They are old, traditional institutions.”

Om Prakash Chautala, who heads Haryana's opposition party, Indian National Lok Dal, told India Ink last week that the khap panchayats have “no role to play in politics.” He said that his party did not share any special relationship with these groups.

The khaps are declining in numbers, Mr. Chautala added. In the olden days, in the absence of judiciary these groups often acted as arbitrators, but with the modern day legal system “we don't need to go to them,” he said.

Recently, Mr. Chautala supported the statements of a khap member who said that lowering the marrying age will help r educe the number of rapes because young girls' sexual needs will be met through their husbands. After scathing criticism, Mr. Chautala retracted his support.

Information about the numbers, demographic distribution and specific political influence of existing khaps is hard to find, but academic experts say these institutions can be more powerful than locally elected panchayats.

“Khaps seem to do well in areas where politically elected panchayats are weak,” said Rani D. Mullen, a professor at the College of William and Mary, who wrote a book on village-level democracy in India.

The question of the legal validity of khap panchayats has been often raised in the courts. In April 2011 the Supreme Court of India described them as “kangaroo courts,” which were “wholly illegal.”

Not everyone agrees with the highest court's recommendation to weed out these institutions, with some supporters arguing that they have social value.

“There are ple nty of tyrannical police officials, plenty of incompetent and corrupt judges in India who pass very retrogressive judgments,” said Madhu Purnima Kishwar, a professor at the Center for the Study of Developing Societies in Delhi. “But no one says ban the police and the law courts. By what right do they demand a ban on khaps, simply because some members have undemocratic views?”

She said that most “educated elite” in India don't know anything about the vital role played by these “age-old institutions of self-governance.”

Khaps can play a positive role in society, said Ms. Kishwar, citing the example of a sarpanch, or elected village council head, in Bibipur village in Haryana, who has roped in the local khaps in the anti-feticide campaign that he has started in his village. Haryana has one of the worst child sex ratios in the country.

Ms. Kishwar said that khap members have a fundamental right to free speech and free association, just as other In dian citizens do, and that if they perform a criminal act, they are also liable for punishment under the Indian Penal Code.

The Supreme Court judge Gyan Sudha Misra, who was part of the bench that questioned the actions of a khap panchayat in the April 2011 ruling, told India Ink that “khaps are not created under any legal provision in the Indian constitution. They are a congregation of individuals, under the age-old custom.

“Assembling peacefully and taking law and order in their hands are two separate things,” she said, adding that “the extreme measures that they ask people to execute do not have legal sanction.” If khaps make “comments that are inflammatory or they issue Taliban-style diktats, legal action can be taken” by contesting such orders before a judge, Ms. Misra said.

Legislation could be introduced to ban the illegal measures of these institutions, Ms. Mishra said. “But nothing has been done yet because such a step may have poli tical fallout.”