Indian State Gives Community Councils Carte Blanche

Photo Credits: Reuters
Photo Credits: Reuters

India’s dismal record of eradicating or even reducing sexual violence against women seems set to take a further nosedive if the Aam Aadmi Party (AAP), the erstwhile rising star among political parties, comes to power during the next general elections. A few days before former Delhi Chief Minister resigned from his post, following a stymieing of his efforts to push his anti- corruption agenda, Arvind Kejriwal declared definitively that there was no question of banning Khap Panchayats, the controversial village supervisory bodies or caste councils, notorious in recent times for restricting women’s rights.

Discounting the obvious fact that the Indian Constitution prohibits (at least on paper) adverse discrimination based on caste and that these bodies have perpetuated caste-based distinctions and deprivations of rights, their pronouncements on women’s rights have been even more limiting. In the past they declared that women wearing jeans, carrying mobile phones and youngsters eating chowmein and in general spicy food was the cause and instigating factor for the epidemic of gang rape and horrendous sexual violence in India.

Khap Panchayats are also renowned for ordering honour killings of young couples who marry against caste restrictions. Their activities have not stopped with imposing restrictions and recently a 20-year-old woman was gang raped on the orders of such a panchayat for having a relationship with a man from a different community. Ten of the alleged rapists were members of the panchayat.

Arvind Kejriwal’s response has been that these panchayats serve a cultural purpose and that everyone has a right to an opinion, appropriately disguising his apathy in the form of a purported protection of freedom of speech.

The reality of politics, a patriarchal society and vote banks feeding the existence of these panchayats aside, this piece is meant to focus primarily on the so-called legitimation of their existence based on everyone’s right to have an opinion.

That is not, however, the case.

India is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Contrary to popular belief, even among the educated public, that international treaties only bind states and state organs thus making the State powerless if private parties infringe rights, Art 2(e) of the CEDAW specifically mandates states to ensure that no person, organization or enterprise is allowed to perpetuate such discrimination against women. Some treaties, admittedly, impose restrictions only on State behavior simply because historically States were deemed to be the biggest threats to such rights. However, that is not true of the CEDAW, which articulates this obligation in the clearest terms.

States can enter ‘reservations’ or ‘declarations’ to treaties, which would limit their obligations under said treaties. Sometimes they are made to reflect ground realities, but most often they are political compromises based on interest groups and pressure groups in a domestic scenario. India has entered one such relevant reservation, that it follows a policy of non interference in ‘personal affairs’ of a community to Art 5(a) which details a state’s obligation to modify social and cultural practices which perpetuate discrimination and prejudices based on perceived inferiority of women.  A similar reservation is made to Art 16(1) dealing with the right to freely consent to and enter into marriage and the rights and responsibilities of spouses after marriage. The common, and incorrect understanding of this reservation therefore, is that the Indian state will not interfere in any pattern of discrimination, or human rights violation perpetrated within a community against its women. India is a secular state, with no state religion, which leaves it to religious communities to determine their ‘personal laws’ which are not laws related to everything falling within a ‘personal sphere’ but rather laws relating to marriage, divorce, adoption and guardianship. Thus, despite India’s general insistence on court-granted divorce, the practice of talaq (divorce) is permitted as part of Muslim personal law. Also, the prohibitions of consanguinity within Church law, which occasionally differs from the prohibitions in civil law, is also permitted within the discretion granted to religious communities.

The concept of ‘non interference in personal affairs’ should not be a free pass for the Indian state to turn a blind eye to anything termed as an internal community matter, but only to permit communities to decide their own ‘family laws’. Allowing practices that perpetuate discrimination and encourage the horrifying violence that is becoming a reality of life for Indian women, is a violation of India’s obligations under international law.

The fact that the existence of Khap Panchayats has itself been declared illegal, under Indian constitutional law itself, has clearly not served as a deterrent to political parties who rely on them for vote banks. The influential political ties amongst parties signals a downward spiral in the fight for women’s human rights in the years to come in what is considered to be the world’s biggest democracy. India’s obligations under CEDAW, therefore, may not prove to be very helpful in the actual political scenario. However, painting this picture with the brushes of cultural relativism, arguing their cultural value and purpose and India’s stance of ‘non interference’ is only serving to restrict the arguments that can be made against them. It stifles human rights advocates who are forced to deal with the ‘culture’ argument or who risk being perceived as those advocating for the eradication of cultural values.

The Indian State has made no promises to engender or encourage such cultural systems and has in fact taken on solemn obligations to improve the situation within a feasible framework. Admittedly, the role of the State in changing such cultural mindsets is limited and this is used as an argument to counter accusations of ignoring women’s rights on the international scene. However, defending their existence in the name of ‘cultural purpose’ or under the guise of the ‘right to freedom and expression’ is not only a patent mockery of that right, but a feeble attempt at misdirecting attention from the fact that it is a gross violation of India’s international obligations for Indian officials to claim so.

Linda Beatrice Louis.


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