BETWEEN CUSTOM AND CONSTITUTIONALISM

This paper examines the tension between community-based customs and constitutional rights through the example of khap panchayats in northern India. These informal caste and clan councils do not have authority under Indian law, but some have continued to influence decisions about marriage and relationships. Their opposition to marriages that cross caste, gotra or village boundaries has, in some cases, contributed to threats, social exclusion and violence. The paper considers the historical background of khaps, the legal meaning of custom, and the protection given to an adult’s choice of partner under the Constitution. It focuses particularly on the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and decisions such as Lata Singh v. State of Uttar Pradesh, Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India. The central argument is that an adult’s choice of a life partner is protected by constitutional guarantees of liberty, dignity and privacy. Community disapproval cannot lawfully replace that choice. The continuing problem is the gap between legal principles and their implementation. Police inaction, weak protection systems, the public-notice procedure under the Special Marriage Act and deep-rooted social inequalities can leave couples exposed to pressure. The paper concludes with suggestions for stronger legislation, better policing, safer marriage procedures and wider social awareness.