By Akhil Bansal : Indian society is an old civilisational entity with its developed and relatively stable social structure. Democracy, as an ideology or practice was alien to us before Britishers came, they were the first to open our minds to Western ideals of democracy, although they didn’t practice it here. So, the result was that after independence, a group of Western educated and enlightened leaders made us feel the taste of democracy. But many ideals of democracy came in direct conflict with our social laws and customs, like caste system vs equality, women’s issues, issues of minorities, et cetera. Albeit, our law itself has reflection of our social customs in the form of separate codes for different religious communities & many minute details in many statues and our law too moulds our customs, to an extent, but most of the times, whenever there is a conflict between the two, customs wins and journalists, civil society and some leaders create a hue and cry over it, for example, the vexed issue of the diktats of Khap panchayats. Although, I am not claiming that these people are entirely wrong, but are they really catching the gist of the problem or are they just cleaning the leaves while leaving the roots rotten.
The problem of custom prevailing over law is a complex socio-politico-legal issue, taking it to be an issue of some rogue social elements imposing themselves over others is a little naïve.
We are a society, unlike European ones, where democracy is not a child of masses, it is actually a gift of an enlightened leadership which prevailed at the freedom time, therefore our ideology is still not democratic and law are, so the conflict between social ideology and legal ideology is clear in many places and is also the root cause of the issue. Also, to alter social ideology with legal force requires an elaborate structure to promulgate and implement such laws, much more forcefully than those nations where democracy is an attribute of society itself. But the situation seems to be reverse here, our judiciary is highly understaffed and worse, a victim itself of applying social customs instead of law, especially at the lower levels. Further, our police force and administration doesn’t possess the kind of control the powerful social elements possess, both due to the strings attached to them by politicians, themselves very much dependent on those elements and the society itself at the grassroots. Furthermore, the ‘efficiency’ of social system to do ‘justice’ on their terms is exceptional compared to the formal system, take the case of a Khap which gives ‘instant justice’ ,punishment and even protection compared to our legal and police system which may take years for taking on the same Khap people and in most cases, no action. So, a ‘rational mind’ will mostly take care of customs over law, especially in the hinterland and in our case, even many areas of cities and then again highly literate people will shout over the decisions of the ‘fearful’ individual!
But before blaming the hapless individual, we need to look at the disease itself, the disease of social arrogance generated by the iniquitous social structure untamed by our inactive and inefficient enforcing and judging system. So before condemning the Khap sitting in New Delhi, it is important to understand what we are not able to see in this context, what is the ground reality, why people choose to follow the diktats of extra-legal bodies and most importantly, why people don’t fight for their basic rights even?? All the answers are located in our inabilities, inaction and ignorance, the hapless individual is just the victim of this all!
**’the writer is an alumnus of IIT Delhi